FCT Trustee Limited v Meredith - [2024] NZHC 1142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002357

[2024] NZHC 1142

UNDER
the Property (Relationship) Act 1976,

the Land Transfer Act 2017, the High Court Rules and the Trusts Act 2019

BETWEEN

FCT TRUSTEE LIMITED as trustee of the FLYING CROSS TRUST

First Applicant

GLENN MICHAEL SOROKA

Second Applicant

AND

LOUISE CLARE MEREDITH

First Respondent

GLENN MICHAEL SOROKA and

PETER RAYMOND KERR as trustees of PAKAU 1 TRUST

Second Respondents

On the papers

Counsel:

Second Applicant in person

A P Wooding for First Respondent

E C Gellert for Liquidators of Flying Cross Trust Ltd (in liq) R J Reeves for Secure Funding Ltd

Judgment:

9 May 2024

COSTS JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 9 May 2024 at 12:30 pm pursuant to r 11.5 of the High Court Rules 2016.

Counsel/Solicitors: McVeagh Fleming, Auckland Lowndes Jordan, Auckland Copy to: G N Soroka

Registrar/Deputy Registrar
……………………………..

FCT TRUSTEE LTD v MEREDITH [2024] NZHC 1142 [9 May 2024]

[1] In my judgment dated 22 November 2023, I dismissed the application by FCT Trustee Ltd (FCTTee Ltd), as trustee of the Flying Cross Trust (FCT), and Glenn Soroka for orders varying and replacing the terms of a Tomlin Order and a Freezing Order made by consent (the Consent Orders) in proceedings over a property at 58 Old Barn Road, Papakura (the Property).1

[2] As set out in the Substantive Judgment, the Property had been the family home of Mr Soroka, the settlor of the FCT, his former partner, Louise Meredith, and their son. The registered proprietor of the Property is the Flying Cross Trust Ltd (in liquidation) (FCT Ltd) by virtue of it having previously been the trustee of the FCT.2

[3] The application was opposed by Ms Meredith, the liquidators of FCT Ltd and Secure Funding Ltd.

[4] As explained in the Substantive Judgment, while framed as an application to vary and replace the terms of the Consent Orders, in substance, the application sought to vary the terms of the Settlement Agreement, which was appended as a schedule to the Tomlin Order.

[5] While brought in the names of FCTTee Ltd and Mr Soroka, Mr Soroka was the only active applicant in the proceeding, which he brought after Venning J dismissed a previous application by Mr Soroka, as settlor of the FCT, to vary the Consent Orders and for related declarations.3 In the Substantive Judgment, I also held that Mr Soroka could not represent FCTTee Ltd in this proceeding going forward.4

[6] In the Dismissal Judgment, Venning J held that, because Mr Soroka was not a party to the proceeding in which the Consent Orders were made, there was no basis for him to apply, in his personal capacity, to vary those Orders.5 Venning J also held that the variations Mr Soroka sought were of a completely different nature from the arrangements set out in the Settlement Agreement and went well beyond

1 FCT 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 FCT Trustee Limited v Meredith

Details

AGLC: FCT Trustee Limited v Meredith [2024] NZHC 1142
Case: [2024] NZHC 1142
Decision Date: 9 May 2024

CaseChat Overview and Summary

In FCT Trustee Limited v Meredith, the High Court of New Zealand dealt with an application by FCT Trustee Limited (FCTTee Ltd) and Glenn Soroka to vary the terms of a consent order and a freezing order concerning a property at 58 Old Barn Road, Papakura. The application was dismissed by the Court, and the respondents, Louise Meredith and the liquidators of Flying Cross Trust Ltd (FCT Ltd), sought costs against Glenn Soroka. The Court heard arguments from counsel for Ms Meredith and the liquidators, who requested increased costs due to the vexatious and frivolous nature of the application, as well as the disproportionate conduct of Mr Soroka during the proceedings. Mr Soroka did not file a memorandum in reply.

The Court noted that Mr Soroka's conduct significantly increased the costs incurred by the respondents, as his initial affidavit was excessively large, his pleadings and submissions were repetitive and lacked clarity, and he failed to follow directions from the Court. Additionally, the application was meritless, as it sought to achieve the same result that had already been dismissed by another judge, and it ignored clear guidance on the consequences of appointing a new trustee. The Court held that an uplift of 50 per cent on Ms Meredith's scale costs was appropriate, while considering an increase for the liquidators unwarranted as they had not sought one.

In conclusion, the Court ordered Mr Soroka to pay costs to Ms Meredith and the liquidators of FCT Ltd, including additional disbursements. The orders were as follows: Mr Soroka was to pay Ms Meredith costs of $22,944.00 plus disbursements of $160.00, and to pay the liquidators of FCT Ltd costs of $14,818.00 plus disbursements of $50.00.

Orders