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Clarkson v Clarkson

Clarkson v Clarkson

Case [2020] NZHC 2211 27 August 2020

Jurisdiction

Trustee Act 1956

Originating Application

Interlocutory Orders

Discovery & Disclosure

Affidavit

Civil Litigation & Procedure

Trusts & Equity

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-35

[2020] NZHC 2211

UNDER the Trustee Act 1956

IN THE MATTER

of an Originating Application for directions and orders under the Trustee Act 1956

BETWEEN

PETER RICHARD CLARKSON

Applicant

AND

HUGH OSWALD CLARKSON AND IAN NEIL CLARKSON

Respondents

Hearing: On the papers

Appearances:

M B Lawson for the Applicant

S McCarthy for the First Respondent I N Clarkson in Person

Judgment:

27 August 2020

JUDGMENT OF COOKE J

(Leave under Rule 19.5)

[1] By application filed on 11 June 2020 the applicant has sought directions in relation to this proceeding, including a direction that leave be granted for it to be commenced by way of originating application pursuant to r 19.5 of the High Court Rules 2016 (the Rules). This course of is opposed by the respondents. An affidavit of the applicant sworn 10 June 2020 has been filed in support, and an affidavit of the first named respondent sworn 3 July 2020 has been filed in opposition.

[2] The matter was considered at a telephone conference convened by Grice J on 13 July 2020 where it was agreed that the question of the grant of leave could be

CLARKSON v CLARKSON [2020] NZHC 2211 [27 August 2020]

determined on the papers following the filing of written submissions. Those submissions have now been received.

Background

[3]I describe the background circumstances only briefly at this stage.

[4] The Glenlyon Trust (the Trust) was established on 3 November 1980 by the parties’ father, Richard Clarkson. The Trust property substantially comprises a farm called Glenlyon Station in Hastings.

[5] The applicant and the two respondents are brothers, and although there may be some uncertainties they appear to be the three trustees of the Trust. Both their parents are no longer alive. There are now disagreements between the three of them. The application seeks order removing all three of them as trustees, and that an independent trustee (Stephen Peter Lunn) be appointed as sole independent trustee. It is also an application to vary clause 11 of the Trust Deed to vary the minimum number of trustees from three to one trustee. The basis of the application for those orders is that the relationship between the three brothers is now dysfunctional. The respondents do not agree.

[6] The applicant applies for a direction that the proceedings proceed by way of originating application under Part 19 of the Rules on the basis that it is in the interests of justice to do so given the confined nature of the issues arising. The respondents oppose the substantive orders, and also oppose the matter proceeding by way of originating application under Part 19, and instead contend that it should proceed under Part 18.

[7] There is no dispute the applicant has a right to commence this proceeding under Part 18 as a consequence of r 18.1(b)(xiii). But r 18.4 provides, in part:

(2) The application of this Part to a…

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 Clarkson v Clarkson

Details

AGLC: Clarkson v Clarkson [2020] NZHC 2211
Case: [2020] NZHC 2211
Decision Date: 27 August 2020

CaseChat Overview and Summary

The case of Clarkson v Clarkson, heard by Cooke J, revolves around an originating application made by Peter Richard Clarkson against his brothers Hugh Oswald Clarkson and Ian Neil Clarkson. The application, filed under the Trustee Act 1956, seeks orders to remove the three brothers as trustees of the Glenlyon Trust and to appoint an independent trustee in their place. The application is based on the claim that the brothers' relationship has become dysfunctional, rendering them unfit to continue as trustees of the Trust, which primarily comprises a farm called Glenlyon Station in Hastings. The respondents oppose the substantive orders and argue that the proceedings should proceed under Part 18 of the High Court Rules 2016 rather than Part 19.

The central legal issue the court had to resolve was whether the application should proceed under Part 19 of the Rules as an originating application, or under Part 18 as a standard proceeding. The court considered the nature of the issues, the procedural history, and relevant case law to determine the most appropriate procedural pathway. Cooke J emphasised that proceedings under Part 19 are generally limited to cases where particularised pleadings and interlocutory steps such as discovery are not necessary. In contrast, Part 18 proceedings involve more comprehensive case management and are more suitable for cases with disputed factual issues. The court noted that while the issues between the parties were significant, they were confined in nature, and the proceeding could be effectively managed under Part 19 without the need for extensive pleadings or discovery.

Cooke J concluded that the proceeding should proceed under Part 19 as it was in the interests of justice to do so, given the confined nature of the issues. The court granted leave for the application to proceed as an originating application and directed that the applicant file a fully particularised originating application by a specified date. The respondents were required to file notices of opposition by a later date. The case management conference would then confirm the procedural steps necessary to set the matter down for hearing. This decision aimed to streamline the proceedings, focusing on the key issues and avoiding unnecessary procedural steps.

Orders