Kain v Hutton

IN THE SUPREME COURT OF NEW ZEALAND
SC 40/2007
[2007] NZSC 92

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

First Appellants
ANDGEORGE THOMAS CARLTON KAIN

Second Appellant

ANDJONATHON RHODES HUTTON

First Respondent
ANDWILLIAM ALEXANDER XAVIER COUPER

Second Respondent
ANDANNETTE ELIZABETH COUPER

Third Respondent
ANDWAYNE KEITH STARTUP

Fourth Respondent
ANDGEORGE THOMAS KAIN

Fifth Respondent
ANDMARY HUTTON

Sixth Respondent

Hearing:19 November 2007

Court:Tipping, McGrath and Anderson JJ
Counsel:J S Kós QC and J V Ormsby for Appellants

M R Camp QC for Second Respondent
R A Osborne for Third Respondent

Judgment:20 November 2007

JUDGMENT OF THE COURT

A.       The application for leave to appeal is granted as regards proposed grounds 1 and 2 and refused as regards proposed grounds 3, 4 and 5.
B.         Costs are reserved.
C.         The approved grounds are:
(1)        Whether the Court of Appeal was correct to uphold the resettlement of the balance of the old Mangaheia trust on the new Mangaheia trust.
(2)        Whether the Court of Appeal was correct to uphold the appointment of the shares in Ponui Station to Mrs A E Couper.

REASONS
(for refusing leave)
[1]       The oral hearing which we held related to proposed ground 3. We have decided to decline leave on that ground because we are not satisfied that it is necessary in the interests of justice to grant leave, that being the ultimate criterion specified in s 13(1) of the Supreme Court Act 2003. Without prejudice to whether any issue of general importance underlay the proposed ground, we do not consider that the ground can be fairly or satisfactorily examined in this Court in the light of the absence of a specific pleading directed to it, and in the light of the fact that no relief by way of account of profits was sought in the second amended statement of claim on which the case went to trial.
[2]       There is accordingly no evidence directed specifically to the relief now sought. Its absence might, in our view, cause an injustice to be done. It would, in this case, be inappropriate for this Court to state legal principles in relatively abstract terms and then remit the case to the High Court for further inquiry and quite probably further evidence. All in all, the restitutionary basis upon which the remedy now sought is founded has not been properly set up, either in the pleading or in terms of the course which the case took at trial.
[3]       The matters underlying proposed grounds 4 and 5 do not have sufficient general or public importance, or commercial significance; nor are we brought to the view that a substantial miscarriage of justice will or may occur unless the Court entertains them.
Solicitors:
Wynn Williams & Co, Christchurch for Appellants
DLA Phillips Fox, Wellington for Second Respondent
Duncan Cotterill, Christchurch for Third Respondent

CaseChat Overview and Summary

In the case of Kain v Hutton, the plaintiffs, Georgina Kain, George Harry Couper Kain, George Charles Kain, George Thomas Carlton Kain, and George Michael Kain, along with George Thomas Carlton Kain as a second appellant, sought to appeal against the decisions made by the Court of Appeal. The respondents included Jonathon Rhodes Hutton as the first respondent, William Alexander Xavier Couper and Annette Elizabeth Couper as the second and third respondents, Wayne Keith Startup as the fourth respondent, George Thomas Kain as the fifth respondent, and Mary Hutton as the sixth respondent. The primary dispute centred on the resettlement of the balance of the old Mangaheia trust on the new Mangaheia trust and the appointment of shares in Ponui Station to Mrs A E Couper. The Supreme Court of New Zealand was tasked with deciding whether the Court of Appeal was correct in upholding these decisions.

The legal issues before the Supreme Court were twofold. Firstly, whether the Court of Appeal was correct in affirming the resettlement of the balance of the old Mangaheia trust on the new Mangaheia trust. Secondly, whether the Court of Appeal was correct in upholding the appointment of the shares in Ponui Station to Mrs A E Couper. The court considered these issues in the context of the absence of specific pleadings directed to the relief now sought and the lack of evidence on the restitutionary basis for the remedy. The court was particularly concerned that the absence of such evidence might result in an injustice being done.

The Supreme Court, after considering the arguments presented, declined to grant leave on proposed ground 3 due to the absence of a specific pleading directed to it and the lack of evidence supporting the relief now sought. The court concluded that it would be inappropriate to state legal principles in abstract terms and remit the case to the High Court for further inquiry. The court also found that the matters underlying proposed grounds 4 and 5 did not have sufficient general or public importance, nor did they warrant a substantial miscarriage of justice if not entertained. Consequently, the application for leave to appeal was granted as regards proposed grounds 1 and 2, but refused as regards proposed grounds 3, 4, and 5. Costs were reserved, and the approved grounds were limited to the resettlement of the old Mangaheia trust and the appointment of shares in Ponui Station.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established