Kain v Public Trust - [2024] NZHC 864

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-485-015

CIV-2023-409-140 [2024] NZHC 864

UNDER the Trusts Act 2019 and Part 19 of the High Court Rules 2016

IN THE MATTER

of the TE MATA PROPERTY TRUST

BETWEEN

GEORGINA KAIN, GEORGE CHARLES KAIN, GEORGE HARRY COUPER KAIN, GEORGE MICHAEL KAIN

Applicants

AND

PUBLIC TRUST as trustee of the TE MATA PROPERTY TRUST

First Respondent

MARY HUTTON

Second Respondent

Hearing: On the papers

Counsel:

D R Bigio KC and S T Dymond for Applicants

F C Monteiro and P E Baine for First Respondent
A R Galbraith KC and A V Foote for Second Respondent

Judgment:

19 April 2024

COSTS JUDGMENT OF MANDER J

This judgment was delivered by me on 19 April 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

KAIN v PUBLIC TRUST [2024] NZHC 864 [19 April 2024]

[1] The applicants, who are referred to in the substantive judgment as the “Kain siblings”, applied for an order directing the Public Trust, as the trustee of the Te Mata Property Trust (the Trust), to disclose a distribution deed by which it brought forward the distribution date of the Trust and distributed its capital to the second respondent, Mary Hutton. I dismissed that application and awarded costs to Mrs Hutton, as the successful party, and to Public Trust up until the point it took no further active part in the proceeding.1

[2] Initially, the application for disclosure was only served on Public Trust. However, the Kain siblings were directed in a minute of van Bohemen J on 27 February 2023 to serve the application on Mrs Hutton as the vested capital beneficiary of the Trust. The Public Trust made a Beddoe application seeking an indemnity for its costs from the Kain siblings because the Trust had vested and no longer had any resources to reimburse the trustees’ costs. That application was not pursued after Mrs Hutton became engaged in actively opposing the disclosure application.

[3] Both Mrs Hutton and Public Trust seek costs orders against the Kain siblings. For her part, Mrs Hutton seeks recovery of her scale costs of $19,000.50 on a 2B basis, together with disbursements of $110. The Kain siblings acknowledge Mrs Hutton’s entitlement to 2B scale costs as the successful party. However, Mrs Hutton also seeks to recover costs and disbursements for steps taken by Public Trust in respect of the disclosure application on an indemnity basis. Mrs Hutton maintains she is entitled to indemnity costs from the Kain siblings in reimbursement of the amount she has paid Public Trust for the costs it incurred as a result of its involvement as the trustee in the disclosure proceeding. This amounts to $21,128.33, together with disbursements of
$110. Alternatively, she seeks to recover those costs on a 2B basis, being $5,497, together with disbursements of $110.

[4] Public Trust also seeks an award of costs in respect of its…

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 [2024] NZHC 864
Case: [2024] NZHC 864
Decision Date: 19 April 2024

CaseChat Overview and Summary

In the case of Kain v Public Trust, the Kain siblings sought to compel the Public Trust, as the trustee of the Te Mata Property Trust, to disclose a distribution deed. The siblings sought an order directing the Public Trust to disclose the deed by which it brought forward the distribution date and distributed the capital of the Trust to Mary Hutton. The court dismissed the application and awarded costs to Hutton and the Public Trust. The court was required to decide the extent to which the Kain siblings were liable for the costs incurred by Hutton and the Public Trust in relation to the disclosure application and the Beddoe application. The court concluded that the Kain siblings were not liable for the costs Hutton paid to the Public Trust as this was a private arrangement between Hutton and the Public Trust. However, the court found that the Kain siblings were liable for the costs incurred by the Public Trust in relation to the Beddoe application on a 2B basis. The court ordered the Kain siblings to pay Hutton’s costs on a 2B basis and Public Trust’s costs on a 2B basis, with the latter to be refunded to Hutton.

The court’s reasoning was based on the fact that the Kain siblings were not privy to the arrangement between Hutton and the Public Trust regarding the payment of the Public Trust’s costs. The court found that the Kain siblings could not be held liable for the costs Hutton paid to the Public Trust as this was a private arrangement between those parties. However, the court found that the Kain siblings were liable for the costs incurred by the Public Trust in relation to the Beddoe application on a 2B basis. The court concluded that the Kain siblings were responsible for the costs incurred by the Public Trust in having to make its Beddoe application when it did. The court found that it was appropriate that the Kain siblings contribute to Public Trust’s costs on a 2B basis.

Orders