PUBLIC TRUST
First Respondent

MARY HUTTON, MARNIE COUPIE FORCER KAIN, JACK KAIN, MOLLY KAIN, RACHEL KAIN, STANLEY KAIN, WOLSEY KAIN, GEORGE COUPER MCHARDY KAIN, ASTA KAIN, MADELINE KAIN, GEORGE PAVEY KAIN, MICHAEL KAIN, RUPERT KAIN, SAMUEL KAIN, GEORGIA HUMPHREY, CONSTANCE HUTTON and HARRIET HUTTON
Second Respondents

MARNIE COUPIE FORCER KAIN, JACK KAIN, MOLLY KAIN, RACHEL KAIN, STANLEY KAIN, WOLSEY KAIN, GEORGE COUPER MCHARDY KAIN, ASTA KAIN, MADELINE KAIN, GEORGE PAVEY KAIN, MICHAEL KAIN, RUPERT KAIN, SAMUEL KAIN, GEORGIA HUMPHREY, CONSTANCE HUTTON, HARRIET HUTTON, DAVID WHYTE, KIRSTY MARGUERITE COUPER MASTERSON and ELIZABETH DIANE COUPER FRENDIN
Third Respondents

CA316/2021
BETWEEN	JACK KAIN, MOLLY KAIN, RACHEL KAIN, STANLEY KAIN, WOLSEY KAIN, GEORGE COUPER MCHARDY KAIN, ASTA KAIN, MADELINE KAIN, GEORGE PAVEY KAIN, MICHAEL KAIN, RUPERT KAIN, SAMUEL KAIN and MARNIE COUPIE FORCER KAIN Appellants
AND	PUBLIC TRUST First Respondent GEORGINA KAIN, GEORGE CHARLES KAIN, GEORGE HARRY COUPER KAIN, GEORGE MICHAEL KAIN, MARY HUTTON, GEORGIA HUMPHREY, CONSTANCE HUTTON and HARRIET HUTTON Second Respondents GEORGIA HUMPHREY, CONSTANCE HUTTON, HARRIET HUTTON, DAVID WHYTE, KIRSTY MARGUERITE COUPER MASTERSON and ELIZABETH DIANE COUPER FRENDIN Third Respondents

Court:	French, Venning and Cull JJ
Counsel:	J W A Johnson and W L Porter for Kain Siblings B D Gray QC and A G Holden for Public Trust T C Weston QC, A V Foote and G J D Mander for Mary Hutton J F Anderson QC for Hutton Grandchildren D A T Chambers QC and S R C Barber for Kain Grandchildren
Judgment: (On the papers)	10 June 2022 at 3 pm

COSTS JUDGMENT OF THE COURT

AThe Kain interests are to pay the Hutton interests $6,165.30 by way of party/party costs.
BThe Kain siblings are to have costs in the sum of $27,139.77, including GST and disbursements. Those costs may be recoverable from the assets of the Waitaha Trust.
C The Kain grandchildren are to have costs in the sum of $34,500, including GST and disbursements. Those costs are recoverable from the assets of the Waitaha and Middle Road Block Trusts.
DMary Hutton is to have costs of $52,500, including GST and disbursements. Those costs are to be payable from the Waitaha Trust.
EThe Hutton grandchildren are to have costs in the sum of $29,400, including GST and disbursements. Those costs may be recoverable from the assets of the Waitaha and Middle Road Block Trusts.
FPublic Trust is to recover its costs on the appeal from the assets of the Trusts.

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REASONS OF THE COURT

(Given by Venning J)

In a judgment delivered on 16 December 2021,[1] this Court dismissed the appeals by the Kain siblings and the Kain grandchildren (the Kain interests) in relation to the directions given to Public Trust by the High Court at [108(b)], [108(c)], [109(d)] and [134(b)] of its decision,[2] but allowed their appeals in relation to the direction…

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 Kain v Public Trust

Details

AGLC: Kain v Public Trust [2022] NZCA 239
Case: [2022] NZCA 239
Decision Date: 10 June 2022

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered appeals by Georgina Kain, George Charles Kain, George Harry Couper Kain, and George Michael Kain (the Kain siblings) and by Jack Kain, Molly Kain, Rachel Kain, Stanley Kain, Wolsey Kain, George Couper McDhardy Kain, Asta Kain, Madeline Kain, George Pavey Kain, Michael Kain, Rupert Kain, Samuel Kain, and Marnie Coupie Forcer Kain (the Kain grandchildren) against directions given to Public Trust by the High Court in Public Trust v Kain. The Kain siblings and grandchildren sought to appeal directions made by the High Court concerning the interpretation and application of the terms of the Waitaha and Middle Road Block Trusts. The Court allowed the appeals in part and set aside certain directions made by the High Court. The Kain interests and the Hutton interests (Mary Hutton and her children) filed memoranda as to costs. The Court considered the costs principles applicable to trust litigation and the context of the present proceedings. The Court held that neither the Kain interests nor the Hutton interests should have an indemnity from the Trusts for all their costs. The Kain interests are to recover 30 per cent of their actual costs from the Trusts but are to bear 70 per cent of their actual costs themselves. Similarly, the Hutton interests are to recover 70 per cent of their actual costs from the Trusts but are to bear 30 per cent of their costs themselves. Public Trust is to recover all its reasonable costs of the appeal from the Trusts. The Kain siblings are to pay the Hutton interests $6,165.30 by way of party/party costs. The Kain siblings are to have costs in the sum of $27,139.77, including GST and disbursements. Those costs may be recoverable from the assets of the Waitaha Trust. The Kain grandchildren are to have costs in the sum of $34,500, including GST and disbursements. Those costs are recoverable from the assets of the Waitaha and Middle Road Block Trusts. Mary Hutton is to have costs of $52,500, including GST and disbursements. Those costs are to be payable from the Waitaha Trust. The Hutton grandchildren are to have costs in the sum of $29,400, including GST and disbursements. Those costs may be recoverable from the assets of the Waitaha and Middle Road Block Trusts. Public Trust is to recover its costs on the appeal from the assets of the Trusts.

Orders