Addleman v Lambie Trustee Limited - [2024] NZHC 1790

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000104

[2024] NZHC 1790

BETWEEN
PRUDENCE ANNE ADDLEMAN

Plaintiff

AND

LAMBIE TRUSTEE LIMITED

First Defendant

ANNETTE MERYL JAMIESON
Second Defendant

….cont’d over

Hearing: 5 June 2024

Appearances:

A S Ross KC and R A Rose for Plaintiff

D T S Chambers KC and J M McGuigan for First and Second Defendant
P M Fee for Third Defendant
S P H Elliott for Fourth Defendant

No appearance for Fifth Defendant (deceased) I T Hikaka and R E King for Sixth Defendant N L Walker for Seventh Defendant

Judgment:

3 July 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 3 July 2024 at 1.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………….

ADDLEMAN v LAMBIE TRUSTEE LTD & ORS [2024] NZHC 1790 [3 July 2024]

PETER ALBERTUS THEODORUS MARIA KEMPS
Third Defendant

DONALD BOYD HARGRAVES
Fourth Defendant

ROBERT JOB PALMER
Fifth Defendant

EDMONTON CO PTY LIMITED
Sixth Defendant

LAMBIE INDEPENDENT TRUSTEES LIMITED
Seventh Defendant

Introduction

[1] This is trust litigation. The principal parties are two sisters, now in their early 70s (i.e. Mrs Prudence Addleman and her younger sister, Ms Annette Jamieson). They are the primary beneficiaries of the Lambie Trust, being named as both discretionary and final beneficiaries.

[2] Their disputes about the Trust are long-standing. These proceedings, issued in 2021, have still not been set down for trial. Mrs Addleman estimates the trial will take eight weeks. Related proceedings issued in 2015 by Mrs Addleman seeking disclosure of Trust documents went on appeal to the Supreme Court. There are still outstanding issues about compliance with court-ordered disclosure.

[3] The third amended statement of claim (3ASOC) runs to 605 paragraphs. There are 13 causes of action. They include allegations against the trustees of breach of fiduciary duties, improper exercises of power of appointment, breach of Trust deed, negligence regarding Trust investments, dishonest assistance and knowing receipt.

[4] The Trust has a significant book of assets. By consent, an independent trustee, namely Lambie Independent Trustees Ltd (LITL), the seventh defendant, was appointed as an interim trustee of the Trust in June 2023.1

[5]There are three interlocutory applications now before me:

(a)An application by the first – fourth and sixth defendants to refer the proceeding to mediation under s 145 of the Trusts Act 2019.2 These parties seek the appointment of Mr Rhys Harrison KC as mediator;

(b)An application by the sixth defendant, Edmonton Co Pty Ltd (Edmonton) for an order for security for costs against Mrs Addleman. She is a resident of Portugal. Edmonton proposes security on a staged basis; and

1 Trusts Act 2019, s 114.
2 The seventh defendant, LITL, abides the Court’s decision. However, it does agree that mediation is appropriate and in the interests of all parties to this proceeding.

(c)An application for costs by Edmonton dated 10 May 2024, following the resolution of Edmonton’s strike…

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.

Keep reading for free

Create a free CaseChat account to read Addleman v Lambie Trustee Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1790
Decision Date: 3 July 2024

CaseChat Overview and Summary

This case involves trust litigation between two sisters, Prudence Anne Addleman and Annette Meryl Jamieson, who are the primary beneficiaries of the Lambie Trust. The dispute concerns the administration of the trust, with Addleman alleging breaches of fiduciary duties, improper exercises of power, and other wrongdoings by the trustees. The case has been ongoing for several years, with numerous interlocutory applications and appeals, but has yet to be set down for trial. Currently before the court are three interlocutory applications: a request by the defendants to refer the proceedings to mediation, an application by Edmonton Co Pty Ltd for security for costs against Addleman, and a costs application by Edmonton following the withdrawal of its strike-out application.

The court first considers whether it has jurisdiction to order mediation under section 145 of the Trusts Act 2019. It finds that the proceedings concern internal matters of the trust, involving current and former trustees and beneficiaries, and thus fall within the court's jurisdiction. The court also finds that there is a mechanism within the mediation process to address outstanding disclosure issues, which need not involve the court improperly delegating its powers to a mediator.

Regarding the appointment of a mediator, the court rejects Addleman's objection to Mr Rhys Harrison KC on the basis that his prior involvement with one of the defendants is not disqualifying and that he is an experienced and respected mediator.

The court declines to order security for costs against Addleman, finding that the application is premature and that the issues could be revisited if the litigation proceeds after a failed mediation.

Finally, the court finds that there should be no order for costs in relation to Edmonton's strike-out application, as the appropriate outcome is for costs to lie where they fall.

The court grants the application for mediation, appoints Mr Harrison as mediator, and directs that the mediation costs be met from the trust property. It dismisses the application for security for costs, ordering Edmonton to pay costs to Addleman for the failed application. No order is made in relation to the costs of Edmonton's strike-out application.

Orders