Addleman v Lambie Trustee Limited - [2022] NZHC 2975

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-000104

[2022] NZHC 2975

UNDER Trustee Act 1956, Part 18 of the High Court Rules 2016 and the Court’s inherent
jurisdiction

BETWEEN

PRUDENCE ANNE ADDLEMAN

Plaintiff

AND

LAMBIE TRUSTEE LIMITED

First Defendant

ANNETTE MERRYL JAMIESON
Second Defendant

PETER ALBERTUS THEODORUS MARIA KEMPS

Third Defendant

Continued: .. /2

Hearing: 18 July 2022

Appearances:

A S Ross QC and R A Rose for the Plaintiff

A R Galbraith QC, J M McGuigan for the First Defendant

A R Galbraith QC, J M McGuigan for the Second Defendant P M Fee and ECR Offner for the Third Defendant

SPH Elliott for the Fourth Defendant

R J Palmer for the Fifth Defendant (attendance excused) I T Ihaka and J L Beverwijk for the Sixth Defendant

N L Walker and N Wilson for the Seventh Defendant

Judgment:

14 November 2022

JUDGMENT OF DUFFY J

…/2

ADDLEMAN v LAMBIE TRUSTEE LIMITED [2022] NZHC 2975 [14 November 2022]

DONALD BOYD HARGRAVE
Fourth Defendant

ROBERT JOB PALMER
Fifth Defendant

EDMONTON CO PTY LIMITED
Sixth Defendant

This judgment was delivered by me on 14 November 2022 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Bell Gully, Auckland
Dyer Whitechurch, Auckland Lee Salmon Long, Auckland Fee Langstone, Auckland Russell McVeagh, Wellington
Hornabrook Macdonald, Auckland

A R Galbraith QC, Auckland A R Ross QC, Auckland
R A Rose, Auckland
D A T Chambers QC, Auckland J M McGuigan, Auckland
S P H Elliott, Auckland

[1] The plaintiff in this proceeding, Prudence Addleman, brings claims against present and former trustees of the Lambie Trust for breach of the Lambie Trust deed and breach of fiduciary duties. The first defendant, Lambie Trustee Limited (LTL), is a current trustee who is being sued in this way. The former trustee defendants are the second defendant (Annette Jamieson), the third defendant (Peter Kemps), the fourth defendant (Donald Hargrave) and the fifth defendant (Robert Palmer).

[2] Mrs Addleman also brings claims in knowing receipt of trust money and property against Ms Jamieson in her personal capacity and against the sixth defendant, Edmonton Co Pty Ltd (Edmonton). Ms Jamieson is also being sued in her personal capacity in relation to her exercise of a personally held power to appoint trustees to the Lambie Trust.

[3] In the context of this proceeding Mrs Adleman has filed an interlocutory application for directions regarding the Lambie Trust fund (the directions application). In this application the directions Mrs Addleman seeks include: orders appointing a receiver to administer the Lambie Trust until final determination of this proceeding; or in the alternative, a series of orders which would effectively preclude LTL or Ms Jamieson from taking any action otherwise available to them in relation to decision-making affecting the Lambie Trust.

[4] The directions application is not supported by an undertaking as to damages or the offer of security to cover any loss that may be caused by…

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: [2022] NZHC 2975
Decision Date: 14 November 2022

CaseChat Overview and Summary

Prudence Addleman commenced proceedings against present and former trustees of the Lambie Trust for breach of the Lambie Trust deed and breach of fiduciary duties. The first defendant, Lambie Trustee Limited (LTL), is a current trustee who is being sued in this way. The former trustee defendants are Annette Jamieson, Peter Kemps, Donald Hargrave, and Robert Palmer. In addition, Mrs Addleman brings claims in knowing receipt of trust money and property against Ms Jamieson in her personal capacity and against Edmonton Co Pty Ltd (Edmonton). Ms Jamieson is also being sued in her personal capacity in relation to her exercise of a personally held power to appoint trustees to the Lambie Trust.

In this proceeding, Mrs Addleman has filed an interlocutory application for directions regarding the Lambie Trust fund (the directions application). In this application the directions Mrs Addleman seeks include: orders appointing a receiver to administer the Lambie Trust until final determination of this proceeding; or in the alternative, a series of orders which would effectively preclude LTL or Ms Jamieson from taking any action otherwise available to them in relation to decision-making affecting the Lambie Trust. The directions application is not supported by an undertaking as to damages or the offer of security to cover any loss that may be caused by the making of any of the orders sought in the directions application. Accordingly, LTL and Ms Jamieson now bring an application for orders directing Mrs Addleman to provide an undertaking as to damages and security (the undertaking application). This is one of the applications before me.

The other is an application by Mrs Addleman seeking orders restraining the persons legally representing both LTL and Ms Jamieson from continuing in this role (the restraint application).

The legal issues the court was required to decide included whether LTL and Ms Jamieson can bring the undertaking application, whether Mrs Addleman should provide an undertaking as to damages to support her directions application and whether the Court should restrain the lawyers from acting for both Ms Jamieson and LTL.

In relation to the undertaking application, the Court found that LTL and Ms Jamieson can bring the application as the undertaking application is brought essentially as a defensive action to the directions application. In relation to the undertaking as to damages, the Court found that there is good reason to order Mrs Addleman to provide an undertaking as to damages to support her directions application and provided a format for the undertaking. The Court declined to order security to support the undertaking.

In relation to the restraint application, the Court found that there is a common interest between Ms Jamieson and LTL and that they do not have adverse interests. The Court also found that the interests of justice do not require it to restrain the lawyers from acting for both Ms Jamieson and LTL.

The Court granted the application for an undertaking and directed Mrs Addleman to provide an undertaking in the format set out in the judgment. The Court declined the application for security and the application for restraint. Leave was reserved to the parties to file memoranda as to costs.

Orders