Henry v Henry - [2024] NZHC 312

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-001888

[2024] NZHC 312

UNDER Trusts Act 2019 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

The Boucanier Trust

BETWEEN

COLIN HENRY as trustee and discretionary beneficiary of the BOUCANIER TRUST Applicant

AND

LORRAINE ALTHEA HENRY (aka LORRAINE ALTHEA MORGAN aka ‘SHELLEY’

Respondent

Hearing:
8 February 2024

Further submissions: 19 February 2024 (from C Henry)

Appearances:

Applicant in Person (via VMR) R J Macdonald for Respondent

Judgment:

26 February 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 26 February 2024 at 3.30 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………..

HENRY v HENRY [2024] NZHC 312 [26 February 2024]

Introduction

[1] The applicant, Mr Colin Henry, applies for an order recalling the judgment of Davison J of 6 September 2023, awarding costs (2B scale costs) of $17,818 against him.

[2] Mr Henry contends that the judgment, determined on the papers, be recalled for the following “very special grounds”:

(a)the judgment awards costs of $3,585 to the respondent for preparation of written submission despite no such submissions being prepared and filed by or for her;

(b)Davison J ought not to have determined the costs application because of the appearance of bias (not actual bias); and

(c)in any event, Davison J lacked the necessary judicial authority to determine the costs application because he had no judicial warrant at the time that he purported to carry out that determination.

[3] The costs judgment arose out of an application by Mr Henry against his former wife for an order removing her as a trustee of their family trust, the Boucanier Trust. Mr Henry discontinued the substantive proceedings and the parties were unable to agree on costs. The parties then filed and served submissions on the issue of costs and Davison J determined the matter without a hearing (i.e. on the papers).

Background

[4] Mr and Mrs Henry married in 2001 and divorced in 2021. They have one child together.

[5] The family home they lived in prior to separating was owned by the Boucanier Trust.

[6] In March 2021, Mrs Henry issued a claim in the Family Court seeking orders under the Property (Relationships) Act 1976 and s 182 of the Family Proceedings Act 1980.

[7] On 30 September 2022, Mr Henry filed the application in this Court seeking to have Mrs Henry removed as a trustee of the Boucanier Trust.

[8] In his costs judgment of 6 September 2023, Davison J held that the presumption in r 15.23 of the High Court Rules (i.e. that costs are to be borne by the discontinuing party) had not been displaced and that Mrs Henry should be awarded costs. He rejected an application for increased costs by Mrs Henry pursuant to r 14.6(3) of the High Court Rules.

Relevant legal principles

[9] The Court of Appeal in Banks v…

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 Henry v Henry

Details

AGLC: Henry v Henry [2024] NZHC 312
Case: [2024] NZHC 312
Decision Date: 26 February 2024

CaseChat Overview and Summary

Colin Henry, the applicant and a trustee and beneficiary of the Boucanier Trust, has applied for the recall of a costs judgment delivered by Davison J on 6 September 2023. The respondent is Lorraine Althea Henry, formerly Lorraine Althea Morgan, and also a trustee and beneficiary of the Boucanier Trust. The dispute relates to an application made by Mr Henry to have Mrs Henry removed as a trustee of the family trust, which was discontinued by Mr Henry. The parties were unable to agree on costs, and the matter was determined on the papers by Davison J, who awarded costs of $17,818 to Mrs Henry. Mr Henry seeks to recall this judgment on the grounds that the award of costs was erroneous, that there was an appearance of bias, and that Davison J lacked the necessary judicial warrant to determine the matter.

The court was required to decide whether Mr Henry's grounds for recall were sufficient to warrant the setting aside of the costs judgment. The relevant legal principles included the exceptional nature of recalling a judgment and the grounds upon which such a recall might be justified. The court had to consider whether Mr Henry's claims of error in the costs award, apparent bias, and lack of judicial authority met the threshold of "very special grounds" required for recall.

The court found that Mr Henry's claims did not meet the threshold for recalling the judgment. The court rejected the claim that there was an error in the costs award, finding that submissions had indeed been prepared, and that the time to challenge the costs calculation was before the judgment was given. The court also found that there was no appearance of bias, as a fair-minded observer would not reasonably apprehend that Davison J might not bring an impartial mind to the resolution of the costs issue, given the circumstances and the limited nature of the prior interaction between Davison J and Mr Henry. Lastly, the court found that Davison J had the necessary judicial warrant to determine the matter, as his term had not expired at the time the costs judgment was delivered. Consequently, the application for recall was dismissed, and the applicant was ordered to pay costs to the respondent.

In conclusion, the court dismissed Mr Henry's application for recall of the costs judgment. The applicant was ordered to pay costs to the respondent on a 2B basis plus disbursements. The judgment underscores the exceptional nature of recall applications and the high threshold that must be met for such applications to succeed.

Orders