Addleman v Lambie Trustee Limited
[2022] NZCA 231
•8 June 2022 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA545/2017 [2022] NZCA 231 |
| BETWEEN | PRUDENCE ANNE ADDLEMAN |
| AND | LAMBIE TRUSTEE LIMITED |
| Court: | Cooper, Clifford and Gilbert JJ |
Counsel: | A S Ross QC and R A Rose for Appellant |
Judgment: | 8 June 2022 at 9 am |
JUDGMENT OF THE COURT
The appellant’s application for an order adding Lambie Independent Trustee Ltd as a party to this appeal and for further directions is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
This judgment responds to an application by the appellant seeking an order joining Lambie Independent Trustee Ltd (LITL) as an additional party to this appeal and directions to secure compliance with final orders made by this Court in its substantive judgment delivered on 4 October 2019.[1] We do not consider it is appropriate for this Court to make these post-judgment orders. The appellant should pursue these outstanding issues in the High Court in the first instance.
Background
[1]Addleman v Lambie Trustee Ltd [2019] NZCA 480, (2019) 5 NZTR 29-016 [Substantive judgment].
The appellant, Mrs Addleman, is a beneficiary of the Lambie Trust (the Trust) which was settled by a Deed of Trust dated 19 March 1990. Lambie Trustee Ltd (LTL) was the sole trustee of the Trust from April 2006 until LITL was appointed a co-trustee on 27 October 2021.
From March 2003, after Mrs Addleman became aware of the existence of the Trust, she sought various trust documents from LTL. Her repeated requests were almost entirely resisted. Eventually, in June 2015, Mrs Addleman commenced proceedings in the High Court at Auckland against LTL seeking orders requiring disclosure. The High Court declined to order disclosure of any further trust documents for reasons given in a judgment delivered on 25 August 2017.[2]
[2]Addleman v Lambie Trustee Ltd [2017] NZHC 2054, (2017) 4 NZTR.27-016.
This Court allowed Mrs Addleman’s appeal on 4 October 2019.[3] The formal orders included:
[3]Substantive judgment, above n 1.
DWithin 30 working days of the date of this judgment [LTL] is to provide [Mrs Addleman] with all documents in its possession or power relating to [the Trust] in the following categories:
(i)financial statements;
(ii)minutes of meetings; and
(iii)any legal opinions and other advice obtained by the trustees and funded by the Trust.
ELeave is reserved to apply to the High Court for further direction in the case of any disagreement as to any redaction made in the documents provided in accordance with these orders.
FTo the extent any documents in these categories are no longer available, [LTL] is to serve on [Mrs Addleman] within the same 30‑day period an affidavit from a person having the relevant knowledge explaining what efforts have been made to locate the missing documents and what is thought to have become of them and when.
G[LTL] is to pay [Mrs Addleman’s] costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.
LTL applied for leave to appeal to the Supreme Court. At the same time, it applied to this Court for a stay pending the outcome of its proposed appeal. Cooper J granted a stay of this Court’s orders until the Supreme Court either refused leave to appeal or determined the appeal.[4] The stay was subject to two conditions — first, that this Court’s judgment be sealed by LTL on or before 12 December 2019 and, secondly, that LTL must refund to Mrs Addleman by that date the sum of $47,238.68, being the amount she had paid in costs following the High Court’s judgment.
[4]Addleman v Lambie Trustee Ltd [2019] NZCA 609.
The Supreme Court subsequently granted leave to appeal, but only in respect of order D(iii).[5] LTL nevertheless took the position that the stay granted by Cooper J would continue in respect of all trust documents covered by this Court’s orders until the Supreme Court determined the appeal. This led to a second judgment of Cooper J, delivered on 28 May 2020, which determined that the stay applied only to the limited class of documents in respect of which the Supreme Court had granted leave.[6] The Judge directed that all documents in the other two categories — financial statements and minutes of meetings — were to be provided within 10 working days of the date of his judgment.[7] The Judge also directed that any privilege issues remaining live because of the appeal to the Supreme Court could be dealt with by appropriate redactions.[8]
[5]Lambie Trustee Ltd v Addleman [2020] NZSC 14, (2020) 5 NZTR 30-002.
[6]Addleman v Lambie Trustee Ltd (No 2) [2020] NZCA 194, (2020) 5 NZTR 30-003.
[7]At [17].
[8]At [17].
The Supreme Court dismissed LTL’s appeal on 1 June 2021, but clarified that this Court’s order for disclosure did not extend to legal advice in connection with the present litigation from the time the proceeding was filed in the High Court in June 2015:[9]
AWith the clarification that the orders for disclosure made by the Court of Appeal do not extend to legal advice given from June 2015 in connection with this litigation and with leave reserved to [LTL] to revert to this Court in relation to advice received after 7 November 2014 and before June 2015, the appeal is dismissed.
[9]Lambie Trustee Ltd v Addleman [2021] NZSC 54, [2021] 1 NZLR 307 at [103].
The reservation of leave to revert to the Supreme Court in respect of legal advice received by LTL between 7 November 2014 and June 2015 was explained in the following paragraph of the judgment:
[94] Given the tenor of this correspondence, it is difficult to resist the view that Mrs Addleman’s joint interest in the advice received by [LTL] persisted up until the issue of proceedings in June 2015. That said, in light of the way in which our leave judgment is expressed, [LTL] may, if it wishes to persist in its claim of privilege in advice received after 7 November 2014 and before the commencement of proceedings, revert to this Court in relation to such advice. If [LTL] wishes to do so, it should file a memorandum to that effect with the Court within 14 days of the date of this judgment, giving particulars of the advice in respect of which privilege is asserted.
Mrs Addleman contends that this Court’s disclosure orders, confirmed by the Supreme Court a year ago, have not yet been fully complied with. In particular, she says that despite repeated assertions that LTL has complied with its disclosure obligations and this Court’s judgment, documents continue to be produced in a piecemeal fashion and in a heavily redacted form. She says no explanation has been given about where the documents have come from or why there are such extensive redactions. However, LTL maintains that it has met its disclosure obligations in full.
The application
In order to progress the resolution of these disputed issues, Mrs Addleman applies informally, by way of memorandum of counsel dated 8 April 2022, for orders:
(a)adding LITL as a party (second-named respondent) to this appeal;
(b)requiring LTL and LITL to comply with the proposed directions set out in schedule 1 (attached);
(c)requiring LTL and LITL each to file an affidavit with the Court confirming that they have complied with this Court’s formal orders and explaining the basis for making that assertion to the Court; and
(d)directing a telephone conference to resolve, or at least progress, matters related to LTL’s and LITL’s compliance with this Court’s formal orders.
Counsel for Mrs Addleman contend that the resolution of costs issues in all courts must await the trustees’ compliance with the disclosure orders:
Counsel seek the above orders because costs issues in the Supreme Court (which will inevitably also affect costs issues in this Court and the High Court) are awaiting submissions and determination, but those in turn are awaiting the trustees’ compliance with the Judgment’s orders. The parties disagree on whether the orders have been complied with.
Counsel submit that the matter should be dealt with by this Court, rather than by the High Court, to minimise further cost and delay:
Counsel anticipate that counsel for LTL and LITL may reply to this memorandum suggesting that the matter should be referred to the High Court for determination there. Counsel for Mrs Addleman oppose any such referral on the basis that it would cause yet further delay (which seems to be at least LTL’s objective) and result in Mrs Addleman suffering further (and unnecessary) cost and prejudice.
The Trustees’ opposition
LTL opposes the orders sought by Mrs Addleman on the following grounds:
(a)this Court has already determined that any disagreement regarding redaction of the documents is to be dealt with in the High Court (order E);
(b)this Court has already determined the issue of costs between the parties (order G);
(c)the issues raised by Mrs Addleman in her memorandum are res judicata, and the Court does not have jurisdiction to make the orders she seeks;
(d)in any event, the High Court is the appropriate forum to resolve the kinds of disputed factual issues raised by Mrs Addleman, including the need to assess specific redactions;
(e)many of the issues raised by Mrs Addleman are already before the High Court in another substantive proceeding filed by her in January 2021 against the current and former trustees and their advisors;[10] and
(f)subject to any application to the High Court, the proceeding is all but complete and it is unnecessary for LITL to be added as a party.
[10]Addleman v Lambie Trustee Ltd (CIV-2021-404-104).
LITL also opposes the application. Counsel observe that no authority is referred to by Mrs Addleman which would enable the Court to add a new party to an appeal more than two years after the substantive judgment has been delivered and final orders made. An application for recall of the judgment would be required but the high threshold to justify recall is clearly not met in this case. Outside an application for recall, counsel acknowledge that the necessary power is arguably provided for in r 5 or r 48 of the Court of Appeal (Civil) Rules 2005 (the Rules). If such a power does exist, LITL contends it is not appropriate for it to be added as party to these proceedings given that they have already been concluded. Rather, Mrs Addleman’s complaints about LTL’s compliance with the orders can be addressed in the usual way in the High Court, or in the separate proceedings now in progress in that Court.
Mrs Addleman’s reply
Counsel for Mrs Addleman submit that r 5 or r 48 of the Rules gives this Court jurisdiction to make the orders sought. Alternatively, they say the Court could exercise its power to recall the judgment, observing that this remains possible because LTL has not sealed the judgment despite this being a condition imposed by Cooper J in granting the stay.
Our assessment
The starting point is that this appeal has already been heard and determined. The matter is accordingly res judicata. The recall jurisdiction would therefore need to be accessed to modify the existing orders and make further orders.
The leading authority on the circumstances in which a judgment may be recalled is Horowhenua County v Nash (No 2):[11]
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[11]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The present application plainly does not fall within either of the first two categories. Nor are we able to see how it could justifiably be brought within the third “very special reason” category. This Court’s formal orders are clear and unambiguous. There can be no suggestion of error or oversight in the judgment requiring correction. The present issue is solely one of enforcement of the final orders already made. That is not the proper function of the limited recall jurisdiction. In any event, the orders have now been confirmed by the Supreme Court, excluding any possibility of this Court now recalling its judgment.[12]
[12]Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [41], citing Hikuwai v Sanford Ltd (1996) 9 PRNZ 587 (HC) at 591.
We do not consider r 5 of the Rules assists Mrs Addleman. This rule empowers the Court to make any directions required for the just and expeditious resolution of any matter arising in the proceeding. The proceeding in this Court has been concluded. Nor is r 48 applicable. It sets out various powers the Court has in hearing appeals, but this appeal has already been heard.
Even if this Court had jurisdiction to entertain the present application, we are satisfied it would not be appropriate to exercise it in the present circumstances. To the extent the dispute is concerned with the appropriateness of the extensive redactions to many of the trust documents that have been disclosed, this Court has already directed that such disputes are to be resolved by the High Court. We also note that the Supreme Court has recently made a similar direction, declining Mrs Addleman’s invitation to review the appropriateness of privilege claims made by the trustees.[13] This Court is clearly not the appropriate forum for resolving these types of factual disputes in the first instance.
[13]Lambie Trustee Ltd v Addleman SC118/2019, 25 May 2022 at [5].
We share the Supreme Court’s expressed concern about the delay in resolving these issues. However, the proper course is for Mrs Addleman to pursue her complaints about specific redactions, and compliance generally, in the High Court. Given the unsatisfactory history of this dispute, this should be progressed with minimal further delay.
Result
The appellant’s application for an order adding Lambie Independent Trustee Ltd as a party to this appeal and for further directions is declined.
Solicitors:
Bell Gully, Auckland for Appellant
Dyer Whitechurch, Auckland for Respondent
Russell McVeagh, Wellington for Lambie Independent Trustee Ltd
SCHEDULE 1 – Proposed direction
LTL and LITL must supply Mrs Addleman with:
1. unredacted copies of all legal advice supplied to date (save for material within those documents which is covered by litigation privilege under the SC Judgment/in connection with the 2015 information proceeding);
2. copies of all legal opinions and other advice obtained by the trustees and funded by the Trust which the trustees have not already disclosed;
3. copies of all legal opinions and other advice obtained by companies wholly or majority owned by the Trust/trustee(s);
4. affidavits from persons with relevant knowledge in accordance with Order F. The affidavits must include (but are not limited to) full and specific details about the following: 4.1 what actions all relevant persons have taken to locate all documents falling within the scope of the Judgment;
4.2 a description of what the trustees consider the missing hard copy and electronic information to be and how the trustees (and/or persons instructed by them) have reached that conclusion;
4.3 where all relevant persons (and/or persons instructed by them) have searched for advice, opinions and other information;
4.4 what the searches conducted by all relevant persons revealed;
4.5 a list of all files held by relevant law firms and tax and other advisers which the Trust’s trustees have instructed;
4.6 a list of all hard copy and electronic files gathered/received and reviewed and by whom and when;
4.7 a description of how all electronic files have been extracted and of what the search terms for extraction were (if any);
4.8 details of the efforts made by all relevant persons to ensure that files held in the names of related persons/entities do not contain any advice given to and paid for by the Trust (e.g., Alexander Jamieson, Annette Jamieson, Anthony Jamieson, Meredith Strang; Robert Palmer, Howick Parklands Ltd, Point View Trust, Flat Bush Estates, Idris NZ Ltd, Parkview Estates Ltd, Wilks Holdings Ltd, Edmonton Pty Ltd, Edmonton Co Ltd SA, Recibo Shipping SA, Lake Real Estate SA, Mercadeo E Inversiones Gil SA and Lontana Societa SA etc);
4.9 details of the enquiries that the trustees (and/or all persons instructed by them) made of all persons who have given accounting/tax and/or other advice to the Trust’s trustees to obtain copies of all such advice from those persons (including a list of the specific enquiries made, by whom and when, what was asked for, what files are held/were once held, what was received in response, what the adviser did with files/documents that are no longer available and when etc);
4.10 details of the searches and instructions Ms Jamieson has made regarding all legal, accounting/tax and other advice further to the Judgment (including, who she instructed to search for documents, when, the results of all such searches, where the various documents produced since the Judgment have come from, why they were produced after the Judgment piecemeal, why they were not produced earlier, and to the extent these statements differ from those in previous affidavits, why that is);
4.11 details about who has made litigation privilege redactions to documents supplied to Mrs Addleman, what their instructions were and why s/he considers the dominant purpose test satisfied regarding each redaction;
4.12 details about the specific actions Mr Kemps has taken further to the Judgment and its orders, including: (a) whether Mr Kemps personally reviewed the legal advice supplied to Mrs Addleman and whether he made or approved the redactions;
(b) how Mr Kemps is satisfied (beyond his general recollection/memory) that all material required to be disclosed further to the Judgment has in fact been disclosed to Mrs Addleman;
(c) the specific enquiries Mr Kemps made of Chapman Tripp regarding HPL and any other person/entity connected with the Trust;
(d) the nature and categories of documents Mr Kemps recalls seeing when he inspected the HPL file at Chapman Tripp;
(e) what steps he took to obtain a copy of the HPL file he inspected;
(f) what became of the various Trust and other files Mr Kemps uplifted from Chapman Tripp and his prior firms and a list of what the uplifted files/matters were;
(g) how he only came to find the plastic folder and box of documents held for Annette in his office shortly before the Court of Appeal hearing; and
(h) whether he subsequently personally searched his office/Kemps Weir’s premises and storage facilities for further documents related to the Trust.
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