Hutton v Kain

[2006] NZCA 44

IN THE COURT OF APPEAL OF NEW ZEALAND

CA280/05

UNDERThe Trustee Act 1956

IN THE MATTER OF     an application to remove trustees and related orders

BETWEENJONATHAN RHODES HUTTON, ANNETTE ELIZABETH COUPER, AND WAYNE KEITH STARTUP

Appellants

ANDGEORGINA KAIN, GEORGE HARRY COUPER KAIN, GEORGE CHARLES KAIN, GEORGE THOMAS CARLTON KAIN AND GEORGE MICHAEL KAIN

First Respondents

ANDWILLIAM ALEXANDER XAVIER COUPER

Second Respondent

ANDGEORGE THOMAS KAIN

Third Respondent

Court:Glazebrook, Chambers and Randerson JJ

Counsel:W M Wilson QC and S P Rennie for Appellants

T C Weston QC for First, Third and Fourth Respondents
R J B Fowler for Second Respondent
J V Ormsby for Fifth Respondent
R B Steward QC for Kain Grandchildren

Judgment (On the papers):     7 April 2006 

JUDGMENT OF THE COURT

THE APPLICATION FOR SPECIAL LEAVE TO APPEAL OF 20 DECEMBER 2005 IS GRANTED.  THE APPEAL WILL PROCEED AS A CROSS-APPEAL IN CA271/04.

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REASONS

(Given by Glazebrook J)

[1]       The applicants apply for special leave to appeal against the omission of the High Court to enter judgment for them in relation to claims for relief for damages or compensation or inquiries thereto.  In his judgment of 18 November 2005 at [19] Panckhurst J said that he considered that the applicants were entitled to judgment as sought but that it was too late to recall the substantive judgment of 3 December 2004 as it had been sealed.

[2]       There are a large number of appeals and cross-appeals with regard to the above judgments of the High Court.  It is submitted by the applicants that the proposed appeal will not prolong the hearing and is of a technical nature.  It is suggested that the prospective appeal proceeds as a cross-appeal in CA271/04.  None of the other parties oppose the application or oppose it being dealt with on the papers.

[3]       In the light of the above, we grant the application for special leave.  There is no order for costs.

Solicitors:

Rhodes & Co, Christchurch for Appellants
Chapman Tripp, Christchurch for First, Third and Fourth Respondents
Phillips Fox, Wellington for Second Respondent
Wynn Williams & Co, Christchurch for Fifth Respondent