Kain v Public Trust

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.