Addleman v Lambie Trustee Limited - [2018] NZCA 616

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA545/2017
[2018] NZCA 616

BETWEEN	PRUDENCE ANNE ADDLEMAN Appellant
AND	LAMBIE TRUSTEE LIMITED Respondent

Hearing:	27 September 2018
Court:	Kós P, Miller and Clifford JJ
Counsel:	A S Ross QC and R A Rose for Appellant D A T Chambers QC for Respondent
Judgment:	20 December 2018 at 10.00 am

JUDGMENT OF THE COURT

A The application to adduce further evidence is granted.

B There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

This is an application to adduce further evidence on appeal.

Background

In 1972 Annette Jamieson, then aged 19, dived into a tidal pool near Sydney and broke her spinal cord. She became a quadriplegic. A negligence claim against the local authority succeeded and in 1981 the authority paid Ms Jamieson AUD 1,029,084.
She entrusted the funds to her father, a businessman who had been in a substantial way, but who in 1982 was declared bankrupt. The family continued to live in Australia. Ms Jamieson needed constant nursing care. In 1986 a substantial part of the award was invested in a subdivision opportunity at Howick, near Auckland, that was being promoted by a cousin of Ms Jamieson, a Mr Palmer. A company, Howick Parklands Ltd (HPL), was formed to undertake the subdivision. Mr Palmer and a solicitor held the shares in HPL. Mr Palmer’s evidence was that he held the shares on behalf of Mr and Ms Jamieson.
In due course the shares in HPL were transferred to the Lambie Trust. This was settled in 1990, the settlor being Mr Palmer.
The respondent company, Lambie Trustee Ltd, has since 2006 been the sole trustee of the Lambie Trust. That company, in turn, is controlled by Ms Jamieson. The appellant, Mrs Addleman, is her elder sister and a businesswoman living in England.
The final beneficiaries of the trust are Ms Jamieson, Mrs Addleman and two companies controlled by Ms Jamieson. Discretionary beneficiaries are the final beneficiaries, any spouse or issue thereof, and any charitable object.
In 2000 Mr and Ms Jamieson, discussed Mrs Addleman receiving 25 per cent of the capital of the trust. Ms Jamieson became a trustee, and Mr Jamieson retired. He died in 2001.
In 2002 the trust distributed NZD 4,257,000 to Mrs Addleman. At the time, the trustees wrote to her stating that this amounted to a full and final distribution from the trust to her.
In 2003 Mrs Addleman’s then-solicitors made certain enquiries as to whether the distribution represented her “proper entitlement”. In 2014 Mrs Addleman took this issue up again. Her solicitors wrote to the trustee requesting information over a 24‑year period in order to “ensure the Trust property is being properly managed and there is proper accountability of the trustees in terms of the Trust deed”. After further correspondence, and some additional disclosure by the trustee, Mrs Addleman issued proceedings in June 2015.
The claim issued is a wide-ranging claim for financial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZCA 616
Decision Date: 20 December 2018 at 10.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Prudence Anne Addleman against Lambie Trustee Limited, a company controlled by Annette Jamieson. The appeal centred on an application to adduce further evidence, specifically documentary material from Archives New Zealand and Panamanian companies, to challenge the source of funding for the Lambie Trust. The Trust was settled in 1990 by a cousin of Annette Jamieson, who held shares in a company that purchased land in Howick, New Zealand. The appellant claimed she was entitled to further information and distributions from the Trust, which she believed was funded by sources other than the damages awarded to Annette Jamieson in 1981.

The legal issues before the court were whether the appellant could adduce new evidence on appeal and if the evidence was fresh, credible, and cogent. The court needed to determine if the new evidence could affect the basis of the judgment in the High Court, which dismissed the appellant's claim for information and distributions from the Trust. The court also considered whether the respondent, Lambie Trustee Limited, was obligated to produce the documentary evidence and if the evidence was relevant to the appellant's claim.

The Court of Appeal found that the documentary evidence sought by the appellant was capable of affecting the basis of the judgment in the High Court. The evidence was credible, consisting of official records, and cogent, as it was relevant to the source of funding for the Trust. The court considered the evidence to be fresh, as it could not have been readily obtained before trial, and it was material that should have been identified by the respondent. However, the court noted that greater diligence by the appellant would have identified this material earlier. The court was not disposed to order costs on this application.

The Court of Appeal granted the appellant's application to adduce further evidence, and there was no order for costs. The case was remitted to the High Court for further consideration in light of the new evidence.

Orders