Burnett Mount Cook Station Charitable Trust

[2017] NZHC 169

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2016-476-000026 [2017] NZHC 169

IN THE MATTER OF

BURNETT MOUNT COOK STATION

CHARITABLE TRUST

BETWEEN

THE PUBLIC TRUSTEE Substituted Applicant

MICHAEL ASKIN, TRUSTEE OF THE BURNETT MOUNT COOK STATION CHARITABLE TRUST

Original First Applicant

JOSEPH GORDON BUTTERFIELD DEREK JOHN TAYLOR

EUWAN BOYD LINDSAY HILSON Original Second Applicants

THE ATTORNEY-GENERAL GUIDE HILL STATION LIMITED LINDA BEVERLEY SUNDBERG JANINE NORA SUNDBERG CLINT MILES

ALANA MILES DAVID GOULD

Parties Directed to be Served

NEVILLE JOHN CUNNINGHAM MOUNT COOK TROPHY HUNTING LIMITED

MAUREEN MYRA VANCE DAVID MICHAEL LAWRY ROYAL FOREST AND BIRD PROTECTION SOCIETY OF

NEW ZEALAND INCORPORATED KATRINA GRIFFITHS

Subsequent Parties (Objectors)

Hearing:

Dealt with on the papers

Counsel/ Representation:

R J Hopkins for Substituted Applicant - Public Trustee
A Powell and A Dixon for Attorney General
J V Ormsby, H T Shaw and S D Campbell for Original First and
Second Applicants

P J Page for Guide Hill Station Limited

RE BURNETT MOUNT COOK STATION CHARITABLE TRUST [2017] NZHC 169 [16 February 2017]

G A Hair and M J McKay for L and J Sundberg

T J Castle for N Cunningham and Mount Cook Trophy Hunting
Limited
P Anderson for Royal Forest and Bird Protection Society of
New Zealand Incorporated
N Cunningham - Appearing in Person and for Mount Cook
Trophy Hunting Limited - T J Castle

K Griffiths M M Vance D Lawry

J Finlayson
Professor H Tane

Judgment:

16 February 2017

JUDGMENT OF GENDALL J As to Costs

[1]      In a decision I gave in this proceeding on 8 November 2016 I reached the following conclusions at para [138] of that decision:

(a)       The charitable objects of the Trust outlined in cl 5.1 of the Trust Deed, given the ordinary meaning of the words used, and taking into account the prevailing context and the other supporting evidence here, do not demand continual ownership of the Property by the Trust.

(b)       If the trustees of the Trust determine that a sale of the Property is in the best interests of the Trust, bearing in mind its charitable objects, then  such  a  sale  can  be  achieved  whilst  still  adhering  to  those objects.

(c)       This sale would be consistent with the charitable objects of the Trust if, for example, it was subject to a registered encumbrance running with the land being entered into by the purchaser whereby at all times owners of the Property were required to adhere to and fulfil all the objects of the Trust.  Clearly this is achievable as the Gould Sale Agreement confirms.

(d)       The Trustees have general power to enter into a sale of the Property as an asset of the Trust in terms of cl 7.1 of the Trust Deed.

(e)       The charitable objects of the Trust, as I see it, could be achieved after a sale not only in relation to the Property itself but also in relation to its “surrounds” being neighbouring areas and the general district.

(f)       Following  any  sale  of  the  Property  the  Trust  may  well  have exchanged  this  asset  for  a  relatively  large  cash  capital  injection which could be applied to the objects of the Trust.  This could be done  to  further  the  heritage  and  environmental  aspects  of  the Property and the High Country environment generally, simply by way of possible example, by creating a museum or the like on the Property (with appropriate easements) to celebrate the special status of the Property, or by contributing towards environmental research at and around the Property directed to the control of the wilding pine problem, or for other purposes.

(g)       The s 66 application in its terms seeking direction concerning the sale of the Property therefore is one properly made.   Directions sought will follow.  That does not bind the Trustee of the Trust to a sale of the Property however.  It merely confirms the power to do so within the charitable objects of the Trust.

[2]      In doing so, in addition at para [139] of that decision I made the following direction:

[139]    Accordingly, I make the following direction pursuant to s 66(1) of

the TA on the Public Trustee’s present application:

Approval is now given to the sale of the Property (being those properties known respectively as Mount Cook Station and Cox’s Downs) on the basis that the Public Trustee, as Trustee of the Trust, might consider such a sale to be in the best interests of the Trust, and provided the purchaser is prepared to take and secure the Property for the future subject to the terms of the Trust, for example, by way of a special condition in the sale that it is subject to the purchaser entering into an ongoing encumbrance to be registered against the title to the Property requiring the purchaser and subsequent owners to specifically adhere to and fulfil the charitable objects of the Trust.

[3]      In giving that decision I reserved costs and directed that if the parties were unable to resolve the issue of costs between them they could approach the Court for assistance and file appropriate memoranda.  These memoranda were to be referred to me for consideration and, in the absence of any party indicating they wished to be heard, I would decide questions of costs based on the memoranda filed and all material before the Court.

[4]      Counsel have now filed lengthy and detailed memoranda and reply/further memoranda regarding costs.  These have indicated that they are unable to resolve the issue between themselves.

[5]      That said, the general position on costs from the memoranda filed seems to be that a number of parties in this proceeding all seek costs against each other for varying reasons.  The original first and second applicants have sought that this Court make an order that they be indemnified for their costs and disbursements from the assets of the Burnett Mount Cook Station Charitable Trust.   Guide Hill Station Limited itself seeks an award of costs from the parties who opposed the application. The objectors, Mr and Mrs Sundberg, seek an award of costs from the original applicants for the applications under ss 51 and 52 Trustee Act 1956 but seek that costs lie where they fall in relation to the application under s 66 of the Act.  The objector, Mr Cunningham and Mount Cook Trophy Hunting Limited, seek indemnity costs against the original applicants.  The Public Trustee, who was brought into this proceeding relatively late in the piece as substituted applicant by direction of this Court following the initial hearing, has suggested costs between the other parties to the proceeding should be determined first before turning to consider his/her position.

[6]      So far as the Public Trustee is concerned, however, I am satisfied that as an entirely innocent party in all matters before the Court they are entitled to reimbursement of all costs and disbursements they have incurred and that  these should be met from the assets of the Burnett Mount Cook Station Charitable Trust.

[7]      A direction is made therefore that all costs and disbursements of the Public Trust incurred in this proceeding are to be paid from the Burnett Mount Cook Station Charitable Trust, but as I will note later, no other costs here are to be met from the assets of the Trust.

[8]      So far as all other parties in this proceeding are concerned, I do not consider there is much to be gained by trawling through the many allegations and counter- allegations which have been made in the numerous costs memoranda which have been filed before me.

[9]      Suffice to say, that following consideration of all the circumstances here and all material filed in this matter, I am satisfied that this is an appropriate case where costs should be refused (and simply lie where they fall) in accordance with r 14.7(e) High Court Rules. This rule provides:

14.7     Refusal of, or reduction in, costs

Despite rules 14.2 to 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if

–

…

(e)       the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding…

[10]     I am satisfied here that the present matter before the Court did concern a question of public interest.  Essentially, it related to the terms of the Burnett Mount Cook Station Charitable Trust and issues over the property owned by it.

[11]     It might be said at one level that initially these proceedings were motivated to a degree by the personal interests of the original applicants who were the previous trustees of the charitable trust and their wishes to resolve a difficult impasse into which they had placed themselves.

[12]     Whilst this may have some ring of truth about it, overall I am satisfied here that the general proceedings which followed, and the difference in approach which developed, did involve matters of some considerable public interest concerning the charitable trust and its principal asset, the relatively delicate property owned by it in the Mackenzie High Country.  These were issues that in my view were always going to be required to be addressed.

[13]     The original applicants, as I have noted, have sought that they be indemnified from the assets of the Trust for their costs and disbursements. As I understand it, this was not pleaded nor considered as part of the hearing in this matter.  It is opposed at least by the Public Trustee and in my view in all the circumstances prevailing in this case, the original applicants should not be indemnified for their costs by the Trust.

[14]     The objectors to the original proceedings clearly, at least in the main, also had a public interest concern over the future of,  and issues concerning, the Burnett Mount Cook Station Charitable Trust and its property.

[15]     McGechan on Procedure at para HR14.7.01 provides examples of situations where the Courts have refused or reduced costs in dealing with matters of public interest under r 14.7(e).  In particular, it states:

HR14.7.01     Specific situations

…

(c)       Matter of public interest – r 14.7(e)

(i)       Litigant bringing a proceeding in the public interest:

The case law is collected in New Health New Zealand Inc v South Taranaki District Council [2014] NZHC 993 at [8]- [10]. The requirements are that the proceeding have merit and involve a matter of genuine public interest and importance beyond the interests of the particular unsuccessful litigant, who must also have acted reasonably in the conduct of the proceeding.

[16]     In the present case I am satisfied that the ultimate proceedings which have been before the Court were of merit and involved matters of genuine public interest and importance.  As the situation developed, that public interest matter, in my view, transpired to be generally beyond the interests of the particular litigants involved. And, in a broad sense, as this proceeding unfolded, those litigants who opposed the original application could not be said to have acted unreasonably to any significant extent in their conduct in the proceeding.

[17] With all these matters in mind, I am satisfied this is a case where r 14.7(e) applies and the Court here should refuse to make any order for costs for all parties (other than the direction I have noted at [7] above for the Public Trustee) for all the reasons I have outlined above.

[18]     That said, there is to be no further order for costs (again other than the direction I note at para [7] above).  Costs of the various parties, other than the Public Trustee, are to lie where they fall.

...................................................

Gendall J

Solicitors:

Wynn Williams, Christchurch

Crown Law Office, Wellington
Malley & Co, Christchurch

Gallaway Cook Allan, Dunedin

Timothy Castle, Wellington
Lane Neave Christchurch

Copy to: Public Trustee Ms M Vance Mr D Lawry

Royal Forest & Bird Protection Society of New Zealand

Ms K Griffiths