D G Chesterman, S Carey and E McGill for Plaintiffs R J Latton, H Ford and G Schumacher for First and SSecond Defendants No appearance by, or on behalf of Third Defendant
A S Ross QC and G Beresford for Fourth and Sixth Defendants C T Walker QC and A Lenard for Fifth, Seventh and Eighth Defendants
Judgment:
4 October 2017
JUDGMENT (NO. 2) OF HEATH J
This judgment was delivered by me on 4 October 2017 at 9.15am pursuant to Rule
11.5 of the High Court Rules
Registrar/Deputy Registrar
BURGESS v MONK [2017] NZHC 2424 [4 October 2017]
ANDDAVID TROUNSON Third Defendant
ANDALISDAIR HUGH MORRISON Fourth Defendant
ANDARMER FARMS (N.I.) LTD Fifth Defendant
AND OʼSULLIVAN CLEMENS
Sixth Defendant
ANDGRAEME WILLIAM ELVIN AND SHARLENE DARRAGH
Seventh Defendants
ANDTIHOI HOLDINGS LIMITED Eighth Defendant
CONTENTS
The applications [1] The security for costs application [9] A roadmap [12] The claim in outline [13] The parties and the causes of action [35] The funding application [42] The jurisdictional point [46] The evaluation point [81] Result [88]
The applications
[1] Mr Warwick Burgess (Warwick)1 and CTE Burgess Ltd (CTE) have brought this proceeding in an endeavour to regain family ownership of a farm property (including forests) situated near Tihoi, on the western side of Lake Taupo (the Farm), along with other assets and a business associated with it (together, the Tihoi assets).2
Warwick’s object is to achieve an outcome that will (he believes) reflect his parents’ long held intent that he inherit the Farm. The proceeding requires consideration of events that have occurred over a period of about 50 years, between 1959 and 2010.
[2] Originally, the case was set down for hearing over five weeks commencing on 18 September 2017. For reasons into which it is unnecessary to go, the substantive hearing did not commence until 25 September 2017. On the second day of the trial, it became clear that the estimated duration was far too short. Arrangements have been made for the hearing to extend until late November or early December 2017, if necessary, to ensure it is completed this year.
[3] During the week of 11 September 2017, I was advised by Mr Chesterman, for Warwick, that he wished to make an urgent application (the funding application) to have funds released from the estate of his late mother, Mrs Mary (Molly) Burgess
(Molly and Molly’s Estate respectively). The funding application seeks to put
1 Without intending any disrespect to them, for convenience, I shall use the first names of the members of the Burgess family who feature in this proceeding.
2 For more detail,…
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.
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AGLC
Burgess v Monk [2017] NZHC 2424
Case
[2017] NZHC 2424
Decision Date
CaseChat Overview and Summary
Warwick James Burgess and CTE Burgess Ltd sought an order that Phillip Charles Monk and New Zealand Guardian Trust Company Ltd (Molly’s Trustees) distribute $800,000 from Warwick’s 60 per cent share of Molly Burgess’ estate to him. The application was brought under the inherent jurisdiction of the Court. Warwick contended that the Court could exercise its inherent jurisdiction to compel Molly’s Trustees to make an interim distribution of funds from the estate to him. Molly’s Trustees submitted that the decision whether to advance funds to Warwick was one for them to make, and not one in which the Court had any right to intervene. The Court held that it did have jurisdiction to make the order sought, as the supervisory jurisdiction of the Court in the administration of estates was broad and could be exercised whenever the justice of the case so demanded. The Court considered that the Court’s jurisdiction should be narrowly circumscribed and that a beneficiary may only succeed in compelling distribution if he or she can satisfy the Court that no reasonable trustee could have refused to make the distribution on the particular facts of the case. The Court found that Molly’s Trustees had made a good faith decision not to advance the sum of $800,000 to Warwick and dismissed the funding application.