Kea Trust Company Limited v Pugachev

[2015] NZHC 2218

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2015-404-1753 [2015] NZHC 2218

BETWEEN

KEA TRUST COMPANY LIMITED,

FINETREE COMPANY LIMITED, BRAMERTON COMPANY LTD AND BLUERING COMPANY LIMITED Applicants

AND

SERGEI VIKTOROVICH PUGACHEV, ALEXANDRA TOLSTOY AND VICTOR SERGEYOVICH PUGACHEV

First Respondents

MARU LIMITED, HAPORI LIMITED, AROTAU LIMITED and MIHARO LIMITED

Second Respondents

Hearing:	15 September 2015
Counsel:	R B Stewart QC and W K Blennerhassett for Applicants I M Gault for First Respondents J R Billington QC and T J Cooley for Second Respondents
Judgment:	15 September 2015

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors:

Kensington Swan, Auckland Bell Gully, Auckland MinterEllisonRudd Watts, Auckland Counsel:

R B Stewart QC, Auckland

KEA TRUST COMPANY LIMITED v PUGACHEV [2015] NZHC 2218 [15 September 2015]

[1]      The background to this proceeding was set out in a judgment that I gave on

18 August 2015.1   I do not repeat that here.

[2]      Today, an application was to be heard in which the applicants seek orders to protect  them  for  costs  on  their  substantive  application  for  directions  under  the Trustee Act 1956.  Having had the benefit of further discussions among counsel, it has been agreed that the preferable course is for that application to be heard at the same  time  as  the  substantive  issue.    Accordingly,  the  application  for  costs  is adjourned for hearing contemporaneously with the application for directions.  They will each be heard at 10am on 28 September 2015.

[3]      An issue did arise earlier as to whether minor beneficiaries of the relevant trusts should be separately represented. At the time that point was raised (initially by Muir J, and later by myself), it was unclear whether the first respondents intended to take any steps in this proceeding.  Mr Sergei Pugachev and Ms Alexandra Tolstoy are the parents of the minors.

[4]      Mr Gault has now been instructed to act for the first respondents.   I am satisfied that the interests of the minors coincide with those of their parents.  In those circumstances, it is unnecessary to join the children to this proceeding.  As a result, there is no need for a litigation guardian.  Nor is there any reason for me to appoint counsel to represent the children.  No order is required.  The interests of the minor beneficiaries will be advanced by their parents at the hearing.

[5]      Mr Stewart QC, for the applicants, seeks an  order amending the current originating application for directions.   The last version inadvertently omitted an order sought to protect the applicants from personal responsibility for any costs incurred by other parties to the application.

[6]      There is no opposition to that application.  An order granting leave to amend

is made in terms of para 9(a) and (b) of Mr Stewart’s memorandum of 10 September

1      See Kea Trust Co Ltd v Pugachev [2015] NZHC 1960.

2015.  The amended application shall be filed and served on or before 22 September

2015.  It is unnecessary for notices of opposition to be filed in response to that.

[7]      Mr Gault advises me that his clients have not yet determined whether they wish  to  file  affidavit  evidence  on  the  substantive  application.    Accordingly,  a direction is required to fix a date by which any evidence must be filed. Any affidavit evidence by or on behalf of the first respondents shall be filed and served by 5pm on

18 September 2015.

[8]      Any affidavit evidence in reply from the applicants shall be filed and served by 5pm on 22 September 2015.  Apart from evidence in reply to any affidavits filed by the first respondents, such reply evidence is admitted provisionally subject to any objections that might be raised at the substantive hearing.

[9]      Submissions on behalf of the applicants shall be filed and served on or before

23 September 2015, together with a supplementary bundle of documents containing those not already collected in bundles filed for today’s hearing.  Submissions from each of the respondents shall be filed and served by midday on 25 September 2015.

[10]     In the event of any unexpected developments, leave is reserved for the parties to apply to the Registrar for an urgent telephone conference before me.

[11]     Costs reserved.

P R Heath J