Burgess v Monk

Case [2017] NZHC 2424


IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-Ā-KAHU ROHE

CIV 2013-463-187 [2017] NZHC 2424

BETWEEN

WARWICK JAMES BURGESS

First Plaintiff

CTE BURGESS LTD Second Plaintiff

AND

PHILLIP CHARLES MONK First Defendant

NEW ZEALAND GUARDIAN TRUST COMPANY LTD

Second Defendant

Other defendants continued overleaf

Hearing:

20, 25, 26, 27, 28, 29 September, 2, 3, 4 October 2017

(at Hamilton)

Counsel:

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,…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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