Davis v White - [2017] NZHC 500

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1227 [2017] NZHC 500

BETWEEN
ALEXANDER JAMES DAVIS AND

BRUCE CYRIL MCNIECE AS TRUSTEES OF THE REX WHITE FAMILY TRUST

Applicants

AND

MINNIE BEATRICE WHITE Respondent

Hearing: On the papers

Counsel:

K F Gould for Applicants
D M OʼNeil for Respondent

Judgment:

17 March 2017

JUDGMENT OF PAUL DAVISON J [RE COSTS]

This judgment was delivered by me on 17 March 2017 at 4.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
B C McNiece, Auckland
Browne Linkenbagh Legal Services, New South Wales, Australia

DAVIS v WHITE Costs Judgment [2017] NZHC 500 [17 March 2017]

Introduction

[1] On 18 July 2016, I issued a judgment in which I held that the Rex White Family Trust had failed by reason of uncertainty.1 In that judgment I decided that the applicants had failed in their application, and that consequently the respondent, Mrs White, was entitled to costs. I reserved costs and directed the parties to file memoranda on the issue.

[2] The parties have now filed costs memoranda. For the applicants, Mr Gould has filed a memorandum dated 22 September 2016. For the Respondent, Mr O’Neil has filed three memoranda dated 30 August, 8 December and 9 December 2016.

[3] The respondent, Mrs White, seeks an award of solicitor/client costs or, alternatively, costs calculated on a 2B basis together with disbursements. She further seeks an order that the applicants, Mr Davis and Mr McNiece, be directed to pay her costs personally and without recourse to the funds held by them on trust. Furthermore, Mrs White seeks an order for the disgorgement of costs already paid from the trust fund to the applicants.

The respondent’s submissions

[4] Mr O’Neil for the respondent sets out in his first memorandum details of the actual costs incurred by the respondent. The respondent’s Australian solicitors’ fees total AUD 40,894.33, and her New Zealand counsel’s fees total $85,369.50. The relevant invoices are attached to Mr O’Neil’s memorandum. Expenses were incurred by way of a filing fee ($110.00) and an AVL fee relating to the respondent giving her evidence from Australia ( $1164.70).

[5] Mr O’Neil submits that the Court in its discretion could order either increased or indemnity costs pursuant to r 14.6. He argues that the proceedings could have been avoided at a reasonably early point in time, and refers to the open letter sent by the respondent’s Australian solicitors to Mr McNiece in October 2014. In it they
advised that on a proper construction of the terms of the trust, the respondent was the

1 Davis v White [2016] NZHC 1626, [2016] NZAR 985.

only person to whom the applicants as trustees could pay or apply the trust funds, and that the Masonic Lodge was not an entity to whom the applicants were able to pay or apply the trust funds. The letter took issue with the view expressed in a letter written by the applicant’s counsel that Mr McNiece as trustee…

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] NZHC 500
Case: [2017] NZHC 500
Decision Date: 17 March 2017

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over by Justice Paul Davison, addressed a dispute involving Alexander James Davis and Bruce Cyril McNiece as trustees of the Rex White Family Trust against Minnie Beatrice White. The central issue revolved around the validity of the Rex White Family Trust, with the Court ultimately finding it to be void due to uncertainty. The Court reserved costs, directing the parties to file memoranda on the issue. Minnie Beatrice White, the respondent, sought an award of solicitor/client costs or, alternatively, costs calculated on a 2B basis along with disbursements. She also sought an order for the applicants to pay her costs personally and without recourse to the trust funds, as well as an order for the disgorgement of costs already paid from the trust fund to the applicants.

Justice Davison found that while the applicants acted unreasonably by pursuing a litigation strategy based on a draft deed that lacked merit, their conduct did not warrant indemnity costs. Instead, an increase of 50% on the 2B costs was deemed appropriate, totaling $34,119 plus disbursements of $1,928.72. The Court concluded that the applicants should personally meet 50% of their own legal costs incurred in the proceedings, while the remaining 50% could be paid from the funds held on trust. The Court further ruled that it was not appropriate for the applicants to disgorge previously paid legal costs from the trust fund. The final orders required the applicants to pay the respondent’s costs on an increased scale 2B basis, with the applicants personally meeting 50% of their own legal costs, and prohibiting them from having recourse to the trust funds for these payments.

Orders