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McBride v Public Trustee [2010] WSSC 159 (1 November 2010)

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

MISC 330/07

IN THE MATTER: of the Estate of EVELYN KRUSE late of Vasigano, Deceased

BETWEEN:

LUCY McBRIDE of Auckland, New Zealand, Married Woman, MARIE ANGELA FEIL of Ma'alauli, Home Executive and CHRISTINE KRUSE of Pago Pago, Retired Teacher
Applicants

AND:

THE PUBLIC TRUSTEE as the Administrator of the Estate of the said EVELYN KRUSE, Deceased
First Defendant

AND:

HANS KRUSE, sole beneficiary of the Estate of the said EVELYN KRUSE, Deceased
Second Defendant

Presiding Judge: Justice Slicer

Counsel: R Drake for the Applicants
F Vaai-Hoglund for the First Defendant
A Roma for the Second Defendant

Hearing: 27 May 2010, 6 July 2010

Judgment: 1 November 2010

JUDGMENT (NO.2) OF SLICER J

1. On 6 July 2010, the court dismissed an application against the first and second defendants challenging the validity of a will, accusing them of undue influence on the testatrix and her capacity, and seeking relief under the provisions of the Administration Act 1975, section 47. They failed on all counts for reasons stated in the judgment delivered on 6 July 2010.
   
2. It is not appropriate for the court to recite its observation made in a similar case; Beatrice Afele and Anor delivered on 1 November 2010. The costs will be assessed in accordance with the method applied in Keil v Minister of Natural Resources and Environment [2004] WSSC 32, on the basis of a two-thirds calculation of the costs actually incurred.
   

First Respondent

3. The first respondent does not seek indemnity costs. The memorandum is set out in two parts namely:
   

(1) The costs of the Public Trustee in managing and dealing with the preliminary proceedings, notices of motion and response and the instruction of counsel;

(2) The legal costs connected with the briefing of counsel and trial.

4. The first claim is in an amount of $4,500, covering the period between May 2007 and 2009. Given the number of issues raised by the applicants and the complexity of the matter the primary sum will be accepted.
   
5. The sum of $4,500 will be allowed on a two-thirds calculation at $3,000. I assume that a public office is required to pay VAGST which in this case would amount to $450. If so, costs are awarded in the sum of $3,450.
   
6. The costs awarded to the first respondent will be reduced. The respondent claims a total of $13,200. That claim includes one for $3,900 for thirteen appearances at $300 per appearance. Many of those appearances involve attendances at callovers and the taking of judgment. In many cases counsel will appear at a callover for a number of matters. Such attendances do not warrant a separate fee of $300 per appearance or hour. The claim will be reduced to the figure of $2,000, a figure generous to the respondent.
   
7. There is some overlapping between the work necessary for preparation and research for trial and the closing submissions (23 hours at $300) which will be reduced from $3,330 and $3,900 to $3,000 and $3,500 respectively. The claim of $600 for counsel's fee on the hearing is less than one would expect but it is allowed in the sum claimed.
   
8. Costs will be assessed as:
   

A. Public Trustee (if VAGST included at 2/3 rate) $3,450

B. Counsel

(1) Formal appearances $2,000

(2) Appearance for Hearing $ 600

(3) Initial Instructions $ 250

(4) Further Instructions $ 650

(5) Preparation and Trial $3,000

(6) Closing Submissions and Reply $3,500

(7) Preparation of Costs $ 600

Total B $10,600

Calculation at 2/3 Total $7,066

Add VAGST of 15% $1,060

Total $8,126

9. The sum of $11,576 is awarded as costs to be paid by the applicant to the first respondent.
   

Second Respondent

10. The second respondent seeks indemnity costs. They claim with some justification that the applicants had acted unreasonably in their pursuit of their action. The court accepts that there was ill-will between members of the family and the applicants felt that a parent had acted unfairly. But they had an arguable case on their claim based on the Administration Act 1975 argument. It could not be said that they had no chance of success (Fountain Selected Meat (Pty) Ltd v International Produce Merchants (1981) 81 ALR 387) and had not crossed the line (Polynesian Ltd v Samoan Observer Company Ltd [1999] WSSC 35. The second respondent will be awarded costs on a party basis.
    
11. The primary claim of $8,000 is reasonable and their disbursements warranted.
    
12. They were entitled to obtain the necessary affidavit of Gavin Lowe in New Zealand and those expenses ought to be paid in full.
    

Professional costs including counsel's fee at hearing

2/3 of $8,000 $5,333

VAGST at 15% $ 800

Disbursements $ 250

Travel expenses, airfares and accommodation $2,045

Total $8,428

13. The applicants are to pay the second respondent's costs in the sum of $8,428.
    

(JUSTICE SLICER)