Hey v Hey - [2021] NZHC 591

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000009

[2021] NZHC 591

UNDER the Declaratory Judgments Act 1908 and the Trustees Act 1956

IN THE MATTER

of the BMA and DCL HEY FAMILY TRUST

BETWEEN

DOROTHY CATHERINE LOUISE HEY

Plaintiff

AND

ALISTAIR WILLIAM HEY

Defendant

Hearing: 17 March 2021 (by AVL)

Appearances:

C J G Lucas for Plaintiff

M J Hammer for Defendant

Judgment:

22 March 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 22 March 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HEY v HEY [2021] NZHC 591 [22 March 2021]

Introduction

[1] This judgment concerns an application by the defendant (Alistair) that the plaintiff (Dorothy) provide security for costs.1 The application is opposed.

Background

[2] Dorothy is an 89 year old widow who lives alone. She survives on her pension with no alternative means of support or source of funds (save perhaps funds that might be available if successful in this proceeding).

[3] Dorothy and her late husband, Brian Hey (Brian), had two children namely, Alistair and Christopher Hey (Christopher). For a long time Christopher was estranged from the family.

[4] By Deed of Trust dated 25 May 2006 (the Deed), Brian and Dorothy established the BMA & DCL Hey Family Trust (the Trust). The trustees were Brian, Dorothy and Alistair. The “Appointer” was defined as Brian and Dorothy “or the survivor of them”. The discretionary beneficiaries included Brian, Dorothy, Alistair and any child of Alistair, but did not include Christopher.

[5] Brian died on 27 February 2007. He left a last will under which he purported to transfer his powers as an Appointer under the Deed to Alistair. Whether he could do so by the terms of the Deed is central to the dispute between Dorothy and Alistair. Dorothy argues that upon Brian’s death the powers to remove and appoint trustees of the Trust vested solely in her.

[6] The only asset of the Trust is a house at 4 Coach Court, Cromwell. That is where Dorothy resides. Disputes arose between Dorothy and Alistair when Dorothy wished to sell the property and relocate to Dunedin. On 25 August 2016, Dorothy purported to remove Alistair as a trustee. Later, having reconciled with Christopher, she purported to appoint him as a trustee of the Trust.

1 High Court Rules 2016, r 5.45.

[7] Alistair believes that Dorothy intends to vest the Coach Court property in herself to the exclusion of him and his children. He refuses to sign documents removing his name from the title of the Coach Court property thereby preventing Dorothy and Christopher from dealing with the property.

[8]Dorothy filed this proceeding in February 2020. She seeks declarations:

(a)she has validly exercised her powers as Appointer to remove Alistair and appoint Christopher as a trustee of the Trust; and

(b)to vest the Coach Court property in her and Christopher as trustees of the Trust.

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 Hey v Hey

Details

AGLC: Hey v Hey [2021] NZHC 591
Case: [2021] NZHC 591
Decision Date: 22 March 2021

CaseChat Overview and Summary

In Hey v Hey, the plaintiff, Dorothy Hey, sought a declaration that she had validly exercised her powers as an Appointer to remove Alistair Hey as a trustee of the BMA and DCL Hey Family Trust and to vest the Trust's sole asset, a house at 4 Coach Court, Cromwell, in her and Christopher Hey as trustees. The defendant, Alistair Hey, counterclaimed that Dorothy had exercised her powers for improper purposes, and sought rectification of the Deed of Trust and an estoppel preventing Dorothy from exercising her powers. The court considered an application by Alistair for Dorothy to provide security for costs.

The court was required to decide whether it was just in all the circumstances to order Dorothy to provide security for costs. The court identified four relevant factors: the balance of interests between the parties, whether there was any delay in applying for security costs and the extent to which the delay prejudiced the plaintiff, the merits and prospects of success of the claim, and whether the proceeding was being funded by a non-party concerned with making a commercial profit from funding litigation.

The court held that while Dorothy did not have the resources to pay an adverse costs order, it was not just in all the circumstances to make an order for security for costs. The court considered the balance of interests between the parties and found that requiring Dorothy to provide security for costs would result in injustice as she would be unable to pursue her claim. The court also found that there had been delay by Alistair in pursuing this application and the explanations provided for that delay lacked merit. The court found that ordering security would not be in the interests of either party as it would simply delay a resolution of the issues in dispute, possibly for years. The court concluded that the potential injustice to Dorothy in making an order she pay security for costs exceeded the potential injustice to Alistair from any inability to recover legal costs.

The application for security for costs was dismissed. Costs were reserved, and counsel were to confer to reach agreement on costs. Dorothy's reply evidence was to be filed within two weeks of release of this judgment and a hearing date was to be allocated on the basis of a four day hearing.

Orders