King v Jacks - [2022] NZHC 1659

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-419-292

[2022] NZHC 1659

BETWEEN
FRASER ALEXANDER KING

Plaintiff

AND

TESSA ALEXANDRA JACKS

Defendant

SCOTT ANTHONY MCKENNA

Interested Party

Hearing: On the papers

Counsel:

Plaintiff in Person

G M Sandelin for Defendant

Judgment:

13 July 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 13 July 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

KING v JACKS [2022] NZHC 1659 [13 July 2022]

[1] Mr King seeks recall of my judgment deciding costs should lie where they fall on his interlocutory application for the interim appointment of Perpetual Guardian as an independent trustee of a family trust in substitution of three existing trustees that included Mr King and his estranged wife, Ms Jacks.1 The application for recall is primarily based on a development since the issue of my judgment of 4 May 2022. Ms Jacks has now advised she consents to Perpetual Guardian being appointed as trustee on a permanent basis.

[2] The issue of permanent appointment was raised by Mr King at the hearing of the interlocutory application to which the costs judgment relates. It was referred to in my judgment on the interlocutory application in the following way:2
[4] A further source of disagreement was Mr King’s proposal that, with the making of interlocutory orders to remove the current trustees and appoint Perpetual Guardian as an interim trustee, the substantive proceedings could be dealt with in their entirety and an order made appointing Perpetual Guardian as the independent trustee on a permanent basis. I acknowledge the apparent logic of such a course in light of Ms Jacks acceptance of the impasse between the existing trustees and the need to appoint an independent trustee to attend to the sale of the Property and administration of the proceeds. However, Ms Jacks was not willing to consent to that course. In the absence of her being prepared to dispose of the substantive proceeding on such a basis, it is not open to the Court to dispose of the main proceedings on those terms. At counsel’s request, however, I have recorded Mr King’s wish to resolve the matter on that basis.

[3] Because Ms Jacks has now consented to the permanent appointment of Perpetual Guardian, Mr King maintains my costs decision relating to the interlocutory application for an interim appointment can be recalled and viewed afresh. Ms Jacks opposes the application for recall and submits the potential resolution of the substantive claim has no relevance to the determination of costs on the interlocutory application. It is said the substantive claim could not be resolved until the terms of Perpetual Guardian’s appointment were determined.

[4] Mr King’s application for recall is made in reliance on the third of the well- known principles set out in Horowhenua County v Nash (No 2):3 “[a judgment may be

1 King v Jacks [2022] NZHC…

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 King v Jacks

Details

AGLC: King v Jacks [2022] NZHC 1659
Case: [2022] NZHC 1659
Decision Date: 13 July 2022

CaseChat Overview and Summary

The case of King v Jacks [2022] NZHC 1659 concerns an application for the recall of a costs judgment made in an interlocutory application for the appointment of an independent trustee. The plaintiff, Fraser Alexander King, sought to recall a costs judgment made by MANDER J on 4 May 2022, which determined that costs should lie where they fall on his interlocutory application for the appointment of Perpetual Guardian as an independent trustee of a family trust. The defendant, Tessa Alexandra Jacks, opposed the application for recall, submitting that the potential resolution of the substantive claim had no relevance to the determination of costs on the interlocutory application. The court was required to determine whether the recent consent of Ms Jacks to the permanent appointment of Perpetual Guardian as trustee constituted a "discovery of a new fact" which should result in the recall of the costs judgment.

The court found that Mr King's application for recall conflated the issue of costs as they relate to the interlocutory application with the substantive proceeding itself. The court held that Ms Jack's consent to the permanent appointment of Perpetual Guardian, as sought by Mr King in the substantive proceeding, did not constitute the "discovery of a new fact", at least insofar as the issue of costs is concerned, relating to the hearing and determination of the interlocutory application limited to the question of interim orders. The court further held that Mr King's application for recall conflated the issue of costs as they relate to the interlocutory application with the substantive proceeding itself. The extent that influences the question of costs on the substantive proceeding, in light of her having subsequently consented to a permanent appointment, will have to be assessed by the Judge who deals with any application for costs in respect of the substantive matter. It does not bear on the question of costs that was before the court which was limited to the hearing and determination of the interlocutory application.

The court held that Mr King's application for recall essentially sought to challenge factual findings and relitigate the decision, which was not a proper basis to seek recall. Contended errors of fact or law were more appropriately pursued by way of an appeal. The application for recall of the costs judgment of 4 May 2022 was dismissed.

The court held that the application for recall of the costs judgment of 4 May 2022 is dismissed and costs on the recall application are reserved.

Orders