Guest v Guest - [2019] NZCA 64

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA324/2018
[2019] NZCA 64

BETWEEN	AARON NICHOLAS GUEST Appellant
AND	JOANNE ELIZABETH GUEST First Respondent
AND	GUEST TRUSTEE LIMITED Second Respondent
AND	MELISSA ANNE GUEST Third Respondent
AND	JUDITH ANNE WARNER Fourth Respondent

Hearing:	13 February 2019
Court:	Miller, Simon France and Peters JJ
Counsel:	J G Ross for Appellant G R Mathieson for Respondents
Judgment:	22 March 2019 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for leave to admit further evidence is declined, other than to admit a letter of 7 November 2018 which was inadvertently left out of a chain of correspondence.
BThe appeal is allowed.
CThe costs order in the High Court is quashed. The appellant is entitled to an award of scale costs on a 2B basis plus usual disbursements. The figure is to be calculated in accordance with [29].
DThe first, second and third respondents, together with Mr Basil Ian Livingstone, are jointly and severally liable to meet this costs award.
EThe appellant is entitled to an award of costs for a standard appeal on a band A basis together with reasonable disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

An application was brought in the High Court to determine who was, and who should be, trustees of the Martin and Anne Guest Family Trust (the Trust). The Trust is connected to one side of a family partnership through which two brothers farmed land in Northland. Although not formally a party to the proceeding, Aaron Guest played an active role. He is one of four children of Martin and Anne Guest, and a beneficiary of the Trust. The end result of the proceeding was that all current trustees were removed, and a professional trustee appointed.[1] This was an outcome Aaron Guest had supported, and which he had suggested some time earlier as a means of resolving the proceeding.
[1]Guest v Warner [2018] NZHC 666, [2018] NZAR 423.
Jagose J ordered that all parties bear their own costs.[2] Aaron Guest now appeals that order, claiming his costs should be met by the respondents, and also by a non‑party.
[2]At [42].
The respondents applied for leave to admit further evidence on the appeal. Document A, dated 7 November 2018, was a letter in a chain of documents already before the Court. The letter was omitted in error and leave is given to admit it on appeal. The other numerous documents were not of assistance to the narrow issue on appeal and do not require further elaboration. Save for Document A, the application is dismissed.

Facts

Martin and Bill Guest were brothers who farmed properties in an informal partnership. Each brother eventually established family trusts which came to own some of the properties on which the enterprise was based. The fourth respondent, Judith Anne Warner, is an accountant who was known to Martin and Bill. She worked with Bill on some farmer advocacy matters. The firm with…

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 Guest v Guest

Details

AGLC: Guest v Guest [2019] NZCA 64
Case: [2019] NZCA 64
Decision Date: 22 March 2019 at 3.00 pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Aaron Nicholas Guest against a costs order made by the High Court in a trust dispute. The appeal concerns the costs order made by Jagose J in Guest v Warner, which ordered all parties to bear their own costs. Aaron Guest sought an award of costs from the respondents and a non-party, Basil Ian Livingstone. The Court allowed the appeal, quashed the costs order in the High Court, and ordered that Aaron Guest is entitled to an award of scale costs on a 2B basis plus reasonable disbursements, to be calculated in accordance with [29]. The first, second, and third respondents, together with Mr Livingstone, are jointly and severally liable to meet this costs award. The appellant is also entitled to an award of costs for a standard appeal on a band A basis together with reasonable disbursements.

The legal issue before the Court of Appeal was whether the trial Judge had correctly exercised his discretion in ordering all parties to bear their own costs. The Court of Appeal considered that the trial Judge had departed incorrectly from the basic rule that costs follow the event. The Court found that Aaron Guest was successful in the High Court proceeding as against the respondents and, therefore, the appeal was allowed. The Court also considered it appropriate to include Mr Livingstone in the costs liability as he had been heavily involved in the litigation and stood to gain from it. The Court of Appeal then determined the quantum of costs to be awarded to Aaron Guest, making several adjustments to the initial calculation.

Orders