Bone v Tuck - [2020] NZHC 393

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000006

[2020] NZHC 393

BETWEEN
CARLENE JOY BONE

Plaintiff

AND

CRAIG GARRY TUCK and YRW TRUSTEES 2016 LIMITED

Defendants

Hearing: On the papers

Counsel:

R J Connell for Plaintiff

C B Hirschfeld and J P Hickey for Defendants

Judgment:

4 March 2020

COSTS JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

BONE v TUCK [2020] NZHC 393 [4 March 2020]

Introduction

[1] These proceedings were initiated by the plaintiff, Carlene Bone (Ms Bone), in January 2018, against her brother, the first-named defendant, Mr Craig Tuck (Mr Tuck) and the second-named defendant YRW Trustees 2016 Ltd (YRW).

[2] The proceedings relate to a family trust, the Tuck Family Trust (“trust”) of which Mr Tuck, together with YRW, were trustees.

[3] Ms Bone alleged that Mr Tuck had not acted appropriately as a trustee and ought to be removed.

[4] Mr Tuck agreed to his removal as a trustee in a memorandum of admission of cause of action, dated 11 February 2019. That admission was filed not long after Jagose J, on an ex parte application by Ms Bone, suspended Mr Tuck as a trustee of the trust. Jagose J concluded that Ms Bone had a serious case for trial that Mr Tuck had failed to properly manage trust assets and to treat all beneficiaries equally and impartially.

[5] On 22 November 2019, there was an examination hearing of Mr Tuck before me and in relation to monies paid by the trust to Mr Tuck and alleged impropriety and failure by Mr Tuck properly to account for monies paid to him.

[6] The parties have since filed submissions on the question of costs, following an examination hearing. This decision, made on the papers, deals with that issue.

Relevant legal principles

[7] The principles the Court should apply are not in dispute. They are set out at r 14.2 of the High Court Rules and include the principle that costs follow the event (r 14.2(1)(a).

Decision

[8]Ultimately, costs are of course at the discretion of the Court (r 14.1).

[9] I find that my discretion should be exercised to award costs against Mr Tuck and in favour of Ms Bone. In my view, Ms Bone was successful with her application and in accordance with the primary principle that “costs follow the event”1 Mr Tuck should be liable for costs.

[10] I acknowledge that Mr Tuck agreed to his removal as a trustee (i.e. the substantive relief sought by Ms Bone) at a relatively early stage in the proceeding. However, I am of the view that the subsequent action taken by Ms Bone, essentially to insist on Mr Tuck fully accounting for his actions or omissions as a trustee, were justified and legitimate ones. This included the pursuit of an examination hearing because of failures by Mr Tuck to respond in a timely manner with directions regarding discovery and interrogatories.

[11] I also accept the submission advanced…

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 Bone v Tuck

Details

AGLC: Bone v Tuck [2020] NZHC 393
Case: [2020] NZHC 393
Decision Date: 4 March 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Tauranga Registry, Carlene Joy Bone initiated proceedings against her brother, Craig Garry Tuck, and YRW Trustees 2016 Limited in relation to the Tuck Family Trust, of which Mr Tuck and YRW were trustees. Ms Bone alleged that Mr Tuck had not acted appropriately as a trustee and sought his removal. Mr Tuck agreed to his removal, and an ex parte application by Ms Bone resulted in his suspension as a trustee. The parties subsequently filed submissions on the issue of costs following an examination hearing.

The legal issue before the court was whether Mr Tuck should be liable for costs, given that he had already agreed to his removal as a trustee. The court considered whether Ms Bone's subsequent actions to hold Mr Tuck accountable for his actions as a trustee were justified and whether Mr Tuck had caused delays in the proceedings. The court also considered whether the costs should be paid by Mr Tuck personally or by the Tuck Trust.

The court found that Ms Bone was successful with her application, and according to the principle that "costs follow the event," Mr Tuck should be liable for costs. The court held that Ms Bone's actions to hold Mr Tuck accountable for his actions as a trustee were justified and that Mr Tuck had caused delays in the proceedings. The court rejected Mr Tuck's request that the costs be paid by the Tuck Trust, stating that the test of expenses properly and reasonably incurred had not been made out in relation to Mr Tuck. The court ordered that Mr Tuck pay costs to Ms Bone in the sum of $32,026 plus disbursements as fixed by the Registrar. Leave was granted to apply for further directions if necessary.

Orders