Goodman v Campbell - [2015] NZHC 2780

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000259 [2015] NZHC 2780

UNDER the Trustee Act 1954, Section 68

BETWEEN

JULIE RUTH GOODMAN Plaintiff

AND

JEREMY ZANE CAMPBELL Defendant

Hearing: 9 November 2015 (Determined on the papers)

Counsel:

P J Shamy for Plaintiff
A D Marsh for Defendant

Judgment:

10 November 2015

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Introduction

[1] The plaintiff, Ms Goodman, is the mother of George David Campbell who was born on 24 May 2004. His father, Clinton Campbell, died in June 2014. Although he and Ms Goodman had not lived together for some years before he died, they had enjoyed a good relationship, and Clinton Campbell was a supportive and loving father. George is his only child.

[2] Clinton Campbell left a will dated 17 October 2013 which was admitted to probate. He appointed his brother, Jeremy Zane Campbell, the defendant, as his sole executor and trustee. He appointed his parents, David and Helen Campbell, as guardians of George. He left the residue of his estate to such of his children as should survive him and attain the age of 21 years. In fact, George is his sole
beneficiary.

Goodman v Campbell Costs Judgment [2015] NZHC 2780 [10 November 2015]

[3] The will empowers the trustee to pay or apply all or any part of the expectant or presumptive share George has in the estate for or towards his maintenance, education or other benefit. The will also provides that the trustee will not be personally liable for any loss incurred as a trustee in the course of administration of the estate and that if personal liability is asserted, the trustee is entitled to full indemnity from the estate unless that liability arose from the trustee’s own dishonesty or from the wilful commission or omission by the trustee of an act known to be a breach of trust.

[4] On 6 May 2015 Ms Goodman filed an interlocutory application without notice for an order appointing her litigation guardian for George under r 4.35 of the High Court Rules. She stated that requests had been made by her to the executor of the estate for information relating to the trust, and the requests had been refused. She therefore wished to be appointed as litigation guardian to pursue court orders requesting provision of the information.

[5] Ms Goodman filed an affidavit in support of this application, setting out the reasons it had been made. She annexed correspondence from the solicitors acting for the defendant trustee, Mr Jeremy Campbell.

[6] I received and considered the interlocutory application for an order appointing Ms Goodman as litigation guardian and a supporting affidavit. I issued a judgment dated 8 May 2015 appointing Ms Goodman as litigation guardian, and giving reasons for so doing. After reviewing the material then before the Court, I formed the view that it may be possible for the issues raised by Ms Goodman to be resolved without her statement of claim being filed, with the attendant cost involved…

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 Goodman v Campbell

Details

AGLC: Goodman v Campbell [2015] NZHC 2780
Case: [2015] NZHC 2780
Decision Date: 10 November 2015

CaseChat Overview and Summary

The High Court of New Zealand considered a dispute between Julie Ruth Goodman, the mother of George David Campbell, and Jeremy Zane Campbell, the executor of George's late father, Clinton Campbell's, estate. Julie sought to be appointed as a litigation guardian for George to pursue information regarding the estate's assets and administration. The court granted the application, but the issue of costs incurred by Julie during the proceedings remained unresolved. The central legal issues revolved around whether the defendant, Jeremy Campbell, was liable for the plaintiff's costs, and if Jeremy could claim his own legal fees from the trust estate.

The court held that Jeremy Campbell was personally liable for Julie Goodman's costs as he failed to recognize her status as George's guardian and did not comply with his duty to provide information to beneficiaries. The judge found that Campbell's conduct was unnecessary and in disregard of the established legal principles. Consequently, the court awarded indemnity costs to Julie Goodman, to be paid personally by Jeremy Campbell. Additionally, the court ruled that Jeremy Campbell was not entitled to claim his own legal fees from the trust assets, as doing so would ultimately burden the sole beneficiary, George.

The final orders of the court were that costs in the sum of $5,950, inclusive of disbursements, were to be paid personally by Jeremy Campbell. He was not entitled to an indemnity for his own costs from the trust estate.

Orders