WINTON v WINTON as executor of the estate of RACHEL MAY WINTON [2019] NZHC 1832

WINTON v WINTON as executor of the estate of RACHEL MAY WINTON [2019] NZHC 1832 [31 July 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2016-485-419[2019] NZHC 1832IN THE MATTER of a claim for damages for breach of contractBETWEEN JAMES ANDREW WINTON, VICTORIAHOLLY LIBERTY WINTON AND JAMESHARRIS SAMUEL WINTONPlaintiffsAND VIRGINIA RUTH WINTON as executor ofthe estate of RACHEL MAY WINTONDefendantHearing: 5 July 2019Appearances: J D Haig for PlaintiffsC S Chapman for DefendantJudgment: 31 July 2019JUDGMENT OF COOKE J(Costs)[1] By judgment dated 19 June 2019 I granted the plaintiffs' application requiringthe defendant provide particular discovery, and to answer interrogatories, followingwhich the plaintiffs were to provide confirmation that they were proceeding withparticular allegations, and then provide particulars of those allegations.1 In relation tocosts I indicated as follows:[45] In relation to costs, normally the plaintiffs would be entitled to themas they have succeeded on the argument before me. My preliminary view isthat the circumstances I should not make a costs award in the plaintiffs' favouron this application at this stage. I propose to reserve the question of costs sothat they are to be treated as costs in the cause. If the plaintiffs demonstratethat the disputed allegation has substance, they should be entitled to costs. But1 Winton v Winton [2019] NZHC 1394.if it transpires that the allegation has no basis, then it seems to me that the costof the present argument should be borne by the plaintiffs. If the plaintiffsnevertheless seek a costs award they should file a memorandum within fiveworking days (10 page maximum) with any reply five working days after (10page maximum).[2] On 27 June 2019 I received a memorandum from counsel for the plaintiffsseeking costs. This was responded to by a memorandum from counsel for thedefendant dated 3 July 2019. A memorandum of counsel for the plaintiffs in replydated 5 July 2019 was also filed. In short the plaintiffs seek an award of costs on theapplications. The defendant supports the view provisionally formed by the Court, andshe also seeks costs of the aborted 22 February 2019 hearing.[3] The plaintiffs rely on r 14.8(1) that, unless there are "special reasons to thecontrary" costs of interlocutory applications must be fixed when the application isdetermined.[4] In the present case, and notwithstanding the submissions by the plaintiffs, Iconclude that there are such special reasons. The rationale of this rule is that " themerits of particular applications and the merits of the substantive proceedings aredifferent matters".2 In the present case, however, that is not so. In determining theultimate outcome of the interlocutory applications before the Court, I decided onbalance that it was better to require the defendant to provide the specific discovery,and to answer the interrogatories, before the particulars were required to be provided.In doing so I expressly recorded that the basis for the plaintiffs' allegations appearedthin, but nevertheless decided that in light of the history of the litigation between theparties that discovery and interrogatories ought to proceed first. I set out the reasonsfor that in paragraph [37], including:(b) Whilst there will be work required for the defendant to respond to thediscovery orders, and to answer the interrogatories, where there is ahistory of distrust it is better for the actual information to be provided.The dispute between the family must be brought to a close at somepoint, and if it is to be determined by the Court, it is best determinedby consideration of the allegations on their merits with the relevantevidence available.2 Chapman v Badon [2010] NZCA 613, (2010) 20 PRNZ 83 at [12].[5] Another way of describing the outcome of the interlocutory applications is tosay that I gave the plaintiffs the benefit of the doubt so that they are able to proceedwith their allegations on their merits, but against the distinct prospect that they mightprove not to be well-founded. In those circumstances it was better that the dispute bedetermined on the merits, rather than at an interlocutory stage. But the plaintiffs werestill benefitting from some degree of indulgence. This is why the merits of the ultimatelitigation, and the merits of the interlocutory application became interlinked.[6] For those reasons I do not award the plaintiffs the costs and I determine thatthe costs of the interlocutory application will become costs in the cause, to bedetermined when the result of the litigation is known. In this way the costs of theargument will become costs in the ultimate determination of the proceedings in thesame way the costs of the actual provision of the discovery, the answer tointerrogatories, and the provisions of the particulars themselves will be.[7] I take the same attitude with respect to the costs of the aborted hearing beforeGrice J on 21 February 2019. Those costs were reserved. They will remain reserved,and are to be determined as costs in the cause in the ultimate determination of the costsof the proceedings.Cooke JSolicitors:Nowland Gordon & Associates, Wellington for PlaintiffsBrandons, Wellington for Defendant