Bell v Thomson
[2014] NZHC 2724
•3 November 2014
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV-2012-454-000178 [2014] NZHC 2724
IN THE MATTER OF the Christine Bell Family Trust BETWEEN
CHRISTINE BELL Plaintiff
AND
PETER BRYCE THOMSON First Defendant
RICARDO WAYNE SCHWAMM Second Defendant
Judgment: 3 November 2014
JUDGMENT OF GENDALL J
BELL v THOMSON [2014] NZHC 2724 [3 November 2014]
[1] On 9 April 2014 I issued a judgment in this proceeding with the intention that this would resolve all matters between the parties in this long-running matter. This followed judicial settlement conferences and many subsequent negotiations following which agreement was reached between the parties.
[2] One issue has arisen between the parties however on which there appears to be some disagreement. This concerned a sum of $9000 being remitted tax arrears received by the Trust from the Inland Revenue Department and how that amount was to be finally distributed.
[3] On all of these matters Associate Judge Osborne in his minute in this proceeding dated 12 February 2014 at paragraph [8] stated:
[8] The solicitors for the plaintiff and the second defendant are secondly to co-operate to make a single approach to the Inland Revenue Department in relation to a request for consideration of remission of some or all of the approximately $9000 I have referred to. The draft of their letter to the Inland Revenue Department is to be provided to Mr Thomson by way of information but it is anticipated that he will support the sending of the letter in the form agreed by Messrs Paine and Tannahill. Any sum ultimately recovered from the Inland Revenue Department by way of remission is again to be distributed to the plaintiff [Ms Bell] and the second defendant [Mr Schwamm] in accordance with the two thirds/one third provision under the consent order.
[4] That minute of Associate Judge Osborne appears to differ from the orders made in my judgment given in this proceeding dated 9 April 2014 in which, at paragraph [10](b) and 10(c) I made the following orders:
[10] …
(b) In the event the request to the Department results in a remission, the remitted funds will fall to be included within the assets of the Trust and will be taken into account in the final distribution to be effected in terms of the following orders;
(c) The Trust is to be wound up and the trustees making the following payments to the following persons:
(i) By way of payment of professional fees and expenses, and in full and final settlement of all claims the first defendant may have in relation to the Christine Bell Family Trust, a sum equivalent to
33.34 percent of the assets of the Trust, available for
final distribution (“the available fund”), upon
presentation of a GST invoice by the first defendant;
(ii) By way of final distribution to the plaintiff and to the second defendant the remaining two-thirds of the trust funds to be allocated as to 44.44 percent of the available funds to the first defendant and 22.22 percent of the available funds to the second defendant.
[5] Various memoranda have now been filed by the parties with respect to the
$9000 Inland Revenue Department remission payment which it seems was not expected but has been received by the parties here. Counsel for the plaintiff and counsel for the second defendant suggest that the understanding they had is that the
$9000 arrears remission received by the Christine Bell Family Trust was simply to be divided between the plaintiff and the second defendant and not the first defendant. The first defendant, who was the solicitor and legal advisor to the Trust, according to the plaintiff and second defendant, should receive his share only of the original
$5000 amount held by the Trust and not these remitted arrears.
[6] In response, the first defendant Mr Thomson claims that the orders made in my judgment of 9 April 2014 are abundantly clear and require one third of this amount to be paid to him by way of additional professional fees and expenses in this longstanding matter. And, he says that this accords with a further order I made in this proceeding on 28 May 2014 confirming my earlier 9 April 2014 orders.
[7] On the face of it, there is some difficulty in disputing this contention advanced by the first defendant given the clear wording of these orders. They stated that any remission received from the Inland Revenue Department was to be “included within the assets of the Trust” and was to be taken into account in the final distribution as outlined at [10](c) of that 9 April 2014 judgment.
[8] On reflection, however, and having considered the matters raised in the various memoranda provided by the parties to this Court, I am satisfied that the just and reasonable conclusion to this matter requires this $9000 to be distributed such that the first defendant receives an additional small amount towards scale costs and his expenses in this matter (which he stated on 26 May 2014 total about $9700 of which he has received about $4900), and the balance divided between the plaintiff
and the second defendant. This entire matter has had a long and tortuous history. This will finally resolve issues between all parties and, although the first defendant may possibly be out of pocket so far as certain of his legal fees and expenses in this matter are concerned, this will finally and I believe justly bring this matter to a conclusion.
[9] An order is now made that the $9000 Inland Revenue Department remission of arrears and any interest earned is to be divided and paid as follows:
(a) As to $1500.00 (plus interest thereon if any) to the first defendant.
(b)As to $7500.00 (plus interest thereon if any) to the plaintiff and the second defendant in the same shares as are effectively provided for in my judgment of 9 April 2014.
...................................................
Gendall J
Solicitors:
G A Paine Barrister, Limited, Dunedin
Opie & Dron, Palmerston North
John Tannahill, Wellington
Langford Law, Wellington
Copy to First Defendant
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