Ballantyne v Ballantyne - [2021] NZHC 2111

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000310

[2021] NZHC 2111

BETWEEN
EUGENIA JOCELYN BALLANTYNE AND WALLACE ROTOHIKO JONES AS TRUSTEES OF THE TUNKU FAMILY

TRUST
Applicants

AND

ANTHONY BALLANTYNE AS TRUSTEE OF THE TUNKU FAMILY TRUST

Respondent

Hearing: On the papers

Counsel/ Representation:

D O O’Neill & H J Mills for Applicants Respondent in person

Judgment:

13 August 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 13 August 2021 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
North End Law, Hamilton

BALLANTYNE AND ANOR v BALLANTYNE [2021] NZHC 2111 [13 August 2021]

Introduction

[1] This is an application for costs by the applicants, Mrs Eugenia Ballantyne and Mr Wallace Jones (the applicants).

[2] In my judgment dated 26 May 2021, I granted the applicants’ application for an order removing Mr Anthony Ballantyne (the respondent) as a trustee of the Tunku Family Trust (the Trust) and made orders authorising the sale of the Trust’s property at Whangamata, a vesting order, and other orders relating to the allocation and distribution of trust funds following the sale of the Whangamata property.1 I found that the applicants, as the successful party, were entitled to costs2 and directed the parties to file costs memoranda.

Background

[3] The substantive judgment for this proceeding involved an application under Part 18 of the High Court Rules 2016 (HCR) for orders pursuant to the Trustee Act 1956 (the Act) and the Court’s inherent jurisdiction.

[4] The applicants sought to remove the respondent as a trustee of the Trust on the grounds that he had consistently failed to cooperate with them regarding the proposed sale of the trust property at Whangamata, and by reason of issues arising as a result of him currently serving a term of imprisonment leading to practical difficulties in contacting him and making arrangements for the execution of documents required for the sale, including those required for compliance under the Anti-Money Laundering and Countering Financing of Terrorism Act 2009.

[5] The applicants also sought orders vesting the Whangamata property and a Hamilton property in the names of the applicants as continuing trustees so as to enable them to proceed with the sale and division of the property and net proceeds.

[6]The respondent did not oppose the application.

1 Ballantyne v Ballantyne as Trustee of the Tunku Family Trust [2021] NZHC 1190 at [57].
2 At [58].

[7]I granted the application and made orders:

(a)That the respondent be removed as a trustee of the Trust.

(b)That Trust properties (situated at Hamilton and Whangamata) be vested in the continuing trustees.

(c)The trustees be authorised to distribute the Hamilton property to Mrs Ballantyne.

(d)The trustees be authorised to sell the Whangamata property.

(e)Authorising the continuing trustees to determine and adjust quantum of the distribution of trust funds with the result that Mrs Ballantyne would receive a half-share of the combined value of the Hamilton property and…

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.

Continue reading Ballantyne v Ballantyne

Details

AGLC: Ballantyne v Ballantyne [2021] NZHC 2111
Case: [2021] NZHC 2111
Decision Date: 13 August 2021

CaseChat Overview and Summary

In Ballantyne and Anor v Ballantyne, the applicants sought an award of costs against the respondent following a successful application to remove him as a trustee of the Tunku Family Trust and to vest the trust's property in the continuing trustees. The applicants argued that the proceedings were necessitated by the respondent's refusal to cooperate with them in relation to the sale of trust property, and that the respondent had opposed the application, leading to a full hearing before the Court. The applicants sought an order for the respondent to pay costs from his share of the proceeds of the sale of the Whangamata property.

The court considered the grounds for awarding increased costs under r 14.6(3)(b) of the High Court Rules 2016. The respondent had not addressed the issue of costs in his memorandum, instead making submissions relating to his criminal conviction and the substantive judgment. The court found that the respondent's opposition to the application and his irrelevant arguments during the course of the proceedings contributed unnecessarily to the time and expense of the proceeding, warranting an uplift of 25 per cent to the standard 2B costs award. The court ordered that the respondent pay $24,198.75 in costs and $1,655.00 in disbursements to the applicants.

The court rejected the applicants' claim for valuation fees as part of the costs award against the respondent, finding that the trustees of the Tunku Family Trust would have required valuation fees regardless of whether these proceedings occurred. The court also found that the respondent's failure to cooperate with the other trustees prior to the commencement of the proceedings was not relevant to an assessment of whether to award an uplift on standard 2B costs. The court concluded that the respondent's arguments in response to the application to remove him as trustee were irrelevant and untenable, and that he had pursued them unnecessarily until the hearing. The court found that a 25 per cent uplift of the costs award was warranted, resulting in a total award of $24,198.75 in costs and $1,655.00 in disbursements to the applicants.

Orders