Kennedy v Kennedy

[2017] NZHC 987

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2016-476-000012 [2017] NZHC 987

UNDER	the Trustee Act 1956
IN THE MATTER	of a Vesting Order
BETWEEN	GRANT DAVID KENNEDY AND GARETH KYLE DAWSON Plaintiffs
AND	JASON ROBERT KENNEDY Defendant

Hearing:	15 May 2017 (Determined on the papers)
Counsel:	C E Clifford for Plaintiffs J R Kennedy (self represented)
Judgment:	15 May 2017

COSTS JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      The plaintiffs are the trustees of the CDA Trust.  The defendant is a former trustee.  He was appointed in 2013 and removed from office on 25 July 2015.

[2]      The Trust owns a property in Timaru.   After he was removed from office (having been asked to retire but declined) he was asked by the ongoing trustees to convey his interest in the property into the names of the new trustees.  He did not do so, and this application was therefore necessary.

[3]      An order was made in favour of the trustees.   The trustees now seek costs against Mr J R Kennedy on a 2B basis.

G D KENNEDY AND G K DAWSON v J R KENNEDY [2017] NZHC 987 [15 May 2017]

[4]      Mr J R Kennedy opposes any award of costs.

[5]      The  trustees  say that  the  application  was  justified  and  that  they had  no alternative but to bring it.   They say success was inevitable and they submit that costs should follow the event.  They say that every opportunity was given to Mr J R Kennedy to resolve the matter outside of the court process. A list of events set out in the trustees’ memorandum, occurring between March and November 2015, led to this proceeding being filed in March 2016.   It is clear from this information that difficulties  were  experienced  in  contacting  Mr  J  R  Kennedy  and  in  actually achieving final resolution of his removal from office and vesting of the principal trust asset.  It is clear from this material that there were issues raised in relation to return of property owned by Mr J R Kennedy but located at the home.

[6]      Mr J R Kennedy has filed a lengthy memorandum.  He is the brother of the first-named trustee, Mr G D Kennedy.  He lays a significant number of very serious complaints against Mr G D Kennedy involving violence and abuse, a change of position in relation to Mr J R Kennedy picking up his belongings from the Trust property, and attendances on the police in relation to Mr G D Kennedy’s actions.

[7]      It is not possible on an application of this kind to make definite factual findings in relation to who is right and who is wrong in relation to the need for the Trust property to be vested in the new trustees.  It is clear that the reason Mr J D Kennedy did not cooperate stems from a complete breakdown in his relationship with Mr G D Kennedy.  In my judgment this is one of those unfortunate cases where animosity has overborne commonsense, I suspect on both sides, with the result that costs have been incurred which should have been avoided.   I am not prepared to apportion  blame  on  the  material  I  have,  nor  is  it  necessary  to  do  so  on  this application.  Mr J R Kennedy is an outgoing trustee.  Ordinarily a trustee would have his own costs of retirement from office covered by the Trust.  In this case the Trust has been put to more expense than it should have been by the events which unfolded.

In all probability there are rights and wrongs on both sides.  I have decided that costs

will lie where they fall, so there will be no order for costs against Mr Kennedy.

J G Matthews

Associate Judge

Solicitors:

Timpany Walton, Timaru

Copy to: Mr J R Kennedy