Kasper Trusts v Van de Elzen - [2021] NZHC 2823

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-9823

[2021] NZHC 2823

UNDER rule 19.4(f) of the High Court Rules 2016 and s 133 of the Trusts Act 2019

IN THE MATTER

of an application for Beddoe Orders by HUGH GREGORY KASPER and MURRAY PIERCE WILLIAMS WARD as

executors and trustees of the estate of Ronald John Kasper, HUGH GREGORY KASPER and HKJ KASPER TRUSTEE LTD as

trustees of the Richmond Road Trust and HUGH GREGORY KASPER and HKJ

KASPER TRUSTEE LTD as trustees of the RJ Kasper Trust

Applicants

……………………………. Continued

Hearing: 3 September 2021

Appearances:

P Collins for the Applicants

J Perry for the First Respondent
P Wright and J Barrow for the Second Respondent

Judgment:

22 October 2021

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 21 October 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Solicitors/Counsel

…………………………………………………………………… Registrar/Deputy Registrar

P Collins, Barrister, Auckland Mac & Co Lawyers, Auckland J Perry. Barrister, Auckland
Stephanie Paxton-Penman, Solicitor, Auckland
P J Wright & J Barrow, Barristers, Shortland Chambers, Auckland Harris Tate, Tauranga

KASPER TRUSTS v VAN DE ELZEN AND ANOR [2021] NZHC 2823 [22 October 2021]

AND BELINDA VAN DE ELZEN

First Respondent
WENDY JOAN CURTIS
Second Respondent

Introduction

[1] The applicants are the trustees of three trusts: the estate of Ronald John Kasper (Estate); and two inter vivos trusts settled by Mr Kasper during his lifetime, namely the Richmond Road Trust (RRT) and the RJ Kasper Trust (RJKT) (together the Trusts).

[2] Mr Kasper and the second respondent, Ms Curtis, lived together as de facto husband and wife for 35 years until Mr Kasper passed away on 22 January 2020 aged
74. On 17 March 2021 Ms Curtis issued three Family Court proceedings against the applicants seeking relief under each of the Family Protection Act 1955 (FPA55); the Family Proceeding Act 1980 (FPA80); and the Property (Relationships) Act 1976 (PRA) respectively (together the Family Court proceedings). In all three proceedings Ms Curtis sues the applicants in their capacities as trustees of each of the three Trusts.

[3] With one exception the applicants all seek Beddoe orders in relation to each of the three proceedings. That is, they apply for directions authorising them to defend the Family Court proceedings at the cost of their respective trust. The exception is that the trustees and executors of the Estate do not seek a Beddoe order in respect of the FPA55 proceeding.

[4]Ms Curtis opposes the application.

The parties

[5] The trustees and executors of Mr Kasper’s Estate are his brother Greg Kasper (Greg) and Mr Kasper’s solicitor Murray Ward (Mr Ward). On 5 August 2020 Probate was granted in respect of Mr Kasper’s will dated 5 August 2018.

[6] Mr Kasper settled the RJKT and the RRT by Deeds of Trust dated 31 January 1997 and 26 May 2005 respectively. The trustees of both the RJKT and the RRT are Greg and HKJ…

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.

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Details

Case: [2021] NZHC 2823
Decision Date: 22 October 2021

CaseChat Overview and Summary

The case of Kasper Trusts v Van de Elzen and Another involved an application for Beddoe Orders by the trustees of three trusts, namely the estate of Ronald John Kasper and two inter vivos trusts. Belinda Van de Elzen, who had lived with Mr Kasper as a de facto spouse for 35 years, filed proceedings in the Family Court seeking relief under the Family Protection Act 1955, the Family Proceedings Act 1980, and the Property (Relationships) Act 1976. The applicants sought Beddoe orders to defend the Family Court proceedings at the cost of their respective trusts. Ms Van de Elzen opposed the application. The court had to determine whether the Family Court proceedings were hostile and whether the trustees had a duty to defend them. The court found that the Family Court proceedings were not hostile and that the trustees had a duty to defend them. The court granted the trustees Beddoe orders to defend the Family Court proceedings, and to pay the reasonable costs of doing so from the resources of the trusts they represented. The trustees were also directed to consider responsibly what steps and costs were reasonable throughout the course of the proceedings, and to cooperate in the defence of the proceedings to avoid unnecessary duplication and expense. Each party's reasonable costs in the application were to be paid from the assets of the Trusts. If the parties could not agree on how those costs were to be allocated between the Trusts, memoranda were to be filed within 10 working days and the matter would be dealt with on the papers.

Orders