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Burgess v Monk

Burgess v Monk

Case [2015] NZHC 1881 11 August 2015

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2013-463-97 [2015] NZHC 1881

BETWEEN
WARWICK JAMES BURGESS

First Plaintiff

C T E BURGESS LIMITED Second Plaintiff

AND

PHILLIP CHARLES MONK First Defendant

THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED Second Defendant

THE ESTATE OF ANTHONY RICHARD WESTERN

Third Defendant

ALISDAIR MORRISON Fourth Defendant

ARMER FARMS (N.I.) LIMITED Fifth Defendant

Hearing: 10 August 2015

Counsel:

D Chesterman for Plaintiff
R Latton for First, Second and Fourth Defendants
C K Lyon for Third Defendant
T Joseph for Fifth Defendant

Judgment:

11 August 2015

JUDGMENT OF HEATH J

This judgment was delivered by me on 11 August 2015 at 2.00pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

BURGESS v MONK [2015] NZHC 1881 [11 August 2015]

Introduction

[1] This proceeding arises out of the sale, in late July 2009, of a farm property and other associated businesses situated near Tihoi, on the western shores of Lake Taupo. The farm was run as a sheep and cattle farm, with associated forestry plantations. In addition, the assets sold included a general store and service station, known as “Trading Post”.

[2] The farm and associated businesses had been in the Burgess family for many years. The events that give rise to the present claims occurred after the original owners, Mr Christian and Mrs Molly Burgess had died.

[3] The claim is brought by Mr Warwick Burgess and a company, CTE Burgess Ltd (CTE). Mr Warwick Burgess is the eldest son of Mr and Mrs Burgess. CTE is a company that was originally established by Mr and Mrs Burgess, but is now under the control of Mr Warwick Burgess.

[4] The plaintiffs claim that, as a result of a number of wrongful decisions made by the trustees and executors of the estates of Mr and Mrs Burgess, Mr Warwick Burgess was deprived of his rightful inheritance. Although also including the torts of negligence, interference with goods and conversion, the primary grounds on which the claims are advanced are for various forms of breach of fiduciary duties, dishonestly assisting a known breach of trust, receipt of property with knowledge of a breach of trust and breach of an agreement reached following a settlement conference in separate Family Court proceedings held on 19 June 2009.

[5] The background to the claim is extensive. The difficulties which arose with the ownership and management of the farm and forestry assets appear to have had their genesis in an estate planning exercise undertaken by the first defendant, Mr Monk. At material times, Mr Monk was the accountant for, and financial adviser to, Mr and Mrs Burgess and CTE. He is an executor and trustee of the estates of the late Mr and Mrs Burgess. A co-trustee is New Zealand Guardian Trust Co Ltd (Guardian Trust), the second defendant. Guardian Trust replaced Mr Anthony Western as an executor and trustee of the estate of Mrs Burgess, as from 29 December 2009.

[6] Mr Western was a farmer who…

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 Burgess v Monk

Details

AGLC: Burgess v Monk [2015] NZHC 1881
Case: [2015] NZHC 1881
Decision Date: 11 August 2015

CaseChat Overview and Summary

In the case of Burgess v Monk, the plaintiffs, Warwick James Burgess and CTE Burgess Limited, brought a claim against Phillip Charles Monk, the New Zealand Guardian Trust Company Limited, the estate of Anthony Richard Western, Alisdair Morrison, and Armer Farms (N.I.) Limited, regarding the sale of a farm property and associated businesses in 2009. The plaintiffs alleged that they were deprived of their rightful inheritance due to wrongful decisions made by the trustees and executors of the estates of Christian and Molly Burgess. The primary grounds for the claims were various forms of breach of fiduciary duties, dishonestly assisting a known breach of trust, receipt of property with knowledge of a breach of trust, and breach of an agreement reached in separate Family Court proceedings.

The legal issues the court was required to decide included the appropriateness of making wasted costs orders, the application to join additional parties, and the resolution of discovery issues. The court held that it had jurisdiction to order wasted costs when a trial had been postponed due to the fault of one or more parties. The court decided to exercise its discretion in awarding wasted costs to the defendants, considering factors such as the length of the delay in the hearing, the reasons for the adjournment, and the costs incurred by the parties.

The court also addressed the application to join additional parties and set out timelines for the joinder application, any targeted discovery applications, and other interlocutory applications. A case management conference was scheduled to be held in Auckland to address these applications and determine a date for the substantive proceeding.

Finally, the court awarded costs to the defendants for the hearing on 10 August 2015, on a 2B basis, together with reasonable disbursements.

Orders