Davis v White - [2017] NZCA 585

IN THE COURT OF APPEAL OF NEW ZEALAND

CA200/2017
[2017] NZCA 585

BETWEEN	ALEXANDER JAMES DAVIS & BRUCE CYRIL MCNIECE AS TRUSTEES OF THE REX WHITE FAMILY TRUST Appellants
AND	MINNIE BEATRICE WHITE Respondent

Hearing:	27 November 2017
Court:	Winkelmann, Venning and Duffy JJ
Counsel:	K F Gould for Appellants No appearance for Respondent
Judgment:	12 December 2017 at 2 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.
B Mr McNiece is to meet his own legal costs of this appeal personally.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

In 1992 Rex White established the Rex White Family Trust (RWFT). Mr Davis and Mr McNiece were appointed trustees.
No executed copies of the RWFT deed exist. The trustees applied to the High Court for orders that:
(a)the RWFT was valid and subsisting; and
(b)the trustees could exercise their absolute and uncontrolled discretion to pay the whole of the trust fund to the charity Freemasons New Zealand.
The application was opposed by Mrs White, the respondent and Rex White’s widow. Davison J determined that the RWFT failed by reason of uncertainty of objects.[1]
[1]Davis v White [2016] NZHC 1626, [2016] NZAR 985.
After receiving written submissions on the issue of costs, the Judge issued a costs judgment in which he made the following orders:[2]
(a)Mr Davis and Mr McNiece were ordered to pay Mrs White’s costs on an increased scale 2B basis amounting to $34,119 plus disbursements of $1,928.72;
(b)Mr Davis and Mr McNiece were to personally meet 50 per cent of their legal costs (including counsel’s fees); and
(c)in paying the costs, Mr Davis and Mr McNiece were not to have recourse to the funds held on trust for the Rex White estate (or the funds previously held by them on trust for the RWFT).
[2]Davis v White [2017] NZHC 500.
Mr McNiece appeals the costs judgment. He does not challenge the costs award in Mrs White’s favour but seeks to reverse the orders:
(a)that he is not to have recourse to the funds held on behalf of the RWFT to pay the costs to Mrs White; and
(b)that he is to personally pay 50 per cent of his own costs (including counsel’s fees).
Mr Gould advised the Court that Mr Davis died in December 2016.

Background

Rex White and Mrs White met in 1962. In 1963 they moved to Australia where they lived together in a de facto marriage relationship before marrying on 12 January 1984. They continued to live together in Australia until Rex White died on 23 November 2001. Although Rex White had a son, Christopher, from a prior marriage, he and Mrs White did not have any children together. Mrs White is now 90 years old and continues to reside in Australia. She has a number of health issues.
Rex White made a will which was executed and dated 2 August 1991. He appointed Mr McNiece, who is a solicitor, as sole executor and trustee and bequeathed the whole…

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 Davis v White

Details

AGLC: Davis v White [2017] NZCA 585
Case: [2017] NZCA 585
Decision Date: 12 December 2017 at 2 pm

CaseChat Overview and Summary

In the appeal of Davis v White, the Court of Appeal of New Zealand dismissed the appeal by the appellants, Alexander James Davis and Bruce Cyril McNiece, trustees of the Rex White Family Trust, against the costs judgment of the High Court. The respondent, Minnie Beatrice White, Rex White's widow, opposed the appellants' application for orders regarding the validity of the Rex White Family Trust and its disposition to Freemasons New Zealand. The substantive issue of the validity of the trust and its disposition was not challenged in the appeal, which focused solely on the costs judgment. The appellants contested the orders that they were to personally pay Mrs White's costs and 50 per cent of their own costs.

The Court of Appeal found that the Judge was correct in his assessment of the appellants' conduct. They had acted unreasonably by relying on a defective draft trust deed and taking the untenable position that the entire trust fund should be paid to Freemasons New Zealand. Additionally, there were inconsistencies in the appellants' statements and conduct regarding the trust's objects and beneficiaries over time. The Court found that the Judge's decision to deny the appellants indemnity for costs from the trust funds and to require them to personally bear part of their own legal costs was justified. The appeal was dismissed, and Mr McNiece was ordered to meet his own legal costs of the appeal personally.

Orders