Guest v Warner

[2018] NZHC 1150

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV 2015-488-0183

[2018] NZHC 1150

BETWEEN

JOANNE GUEST

First Plaintiff

GUEST TRUSTEE LIMITED
Second Plaintiff

MELISSA GUEST
Third Plaintiff

AND

JULIE ANNE WARNER

Defendant

Hearing:	[On the papers]
Counsel:	C Kelly and G R Mathieson for the Plaintiffs C M Webster and J C Waugh for the Defendant J C Ross, A N Guest
Judgment:	22 May 2018

COSTS JUDGMENT OF JAGOSE J

This judgment is delivered by me on 22 May 2018 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Solicitors:

Greg Kelly Law Limited, Wellington (Plaintiff) G Mathieson, Wellington (Plaintiff)

Devonport Law Limited, Auckland (for Defendant) J R Ross, Barrister, Whangarei

GUEST & ORS v WARNER [2018] NZHC 1150 [22 May 2018]

[1]                In my 12 April 2018 judgment, for a number of articulated reasons, I took the preliminary view each party should bear their own costs of trial but reserved costs to be determined on the papers, if my preliminary view was not accepted by any party and costs could not otherwise be agreed between them.

[2]                Perhaps inevitably given the breakdown in relationships recorded in my judgment, costs are now sought by all parties, who are each involved to some degree in the Martin and Anne Guest Family Trust (the “Trust”):

(a)Aaron Guest – a discretionary beneficiary under the Trust established by his parents, but not formally a party to the proceeding (although taking a full role in it) – seeks 2B costs and disbursements in the amount of $109,619.50 jointly and severally from the plaintiffs in their personal capacities, and from another non-party, Basil Ian Livingstone;

(b)the first and third plaintiffs – Aaron’s sisters, Joanne and Melissa – are discretionary beneficiaries under the Trust. Joanne and the assetless second plaintiff, Guest Trustee Limited, were also the Trust’s immediately former trustees (the third trustee being a company of which Melissa was sole director and shareholder). Mr Livingston is the sisters’ uncle, Anne Guest’s brother, and Guest Trustee Limited’s sole director and shareholder. The plaintiffs, while prepared to accept my preliminary view if all parties agreed, seek 2B costs and disbursements in the amount of $123,177.42 from the defendant, Anne Warner, formerly a trustee of the Trust until removed by Anne Guest; and

(c)Anne Warner seeks 2B costs and disbursements in the amount of

$109,000.31 under an indemnity from the Trust; alternatively, uplifted 2B costs and disbursements in the amount of $162,093.69 from the plaintiffs personally.

[3]                All parties have responded to the claims (including Aaron to the former trustees’ claim against Anne Warner), and in turn reply to those responses. Also relevant is:

(a)this is one of three inter-related proceedings between the Guest interests (although Anne Warner is not party to those other proceedings);

(b)very substantial litigation funding is provided by Joanne and Melissa in their personal capacities, and by Mr Livingstone; and

(c)Anne Warner is indemnified in the proceeding by the Bill and Glenis Guest Family Trust. Bill Guest was Martin’s brother.

[4]                Having reviewed all those memoranda, I am reinforced in my preliminary view, for the reasons set out in my 12 April 2018 judgment. Costs are to lie where they fall.

—Jagose J