Legler v Formannoij

[2022] NZHC 1804

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-32

[2022] NZHC 1804

IN THE MATTER

of the Kaahu Trust

UNDER

Part 18 of the High Court Rules 2016

BETWEEN

LI KARI LEGLER, LAILA SUN LEGLER KLAUI and KEN LEGLER

Plaintiffs

AND

MARIA GUILLAUMINA CORNELIA JOHANNA FORMANNOIJ

First Defendant

KAAHU TRUSTEE LIMITED

Second Defendant

Hearing:	On the papers
Counsel:	D R Bigio QC and JWH Little for the Plaintiffs J McBride and R Woods for the Defendants
Judgment:	26 July 2022

JUDGMENT OF GAULT J

(Costs)

This judgment was delivered by me on 26 July 2022 at 4:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr D R Bigio QC and Mr JWH Little, Barristers, Auckland

Ms Pravir Tesiram (plaintiffs’ instructing solicitor), TGT Legal, Auckland Mr J McBride and Ms R Woods, Barristers, Auckland

Mr L T Grant (defendants’ instructing solicitor), Martelli McKegg, Auckland

LEGLER, KLAUI and LEGLER v FORMANNOIJ [2022] NZHC 1804 [26 July 2022]

[1]                   Following my judgment dated 28 March 2022 dismissing the plaintiff’s interlocutory application,1 both parties seek costs.

Factual background

[2]                   The factual background and history of the proceeding leading to the plaintiffs’ application were set out in my earlier judgment and need not be repeated in any detail. In summary, the proceeding concerns a trust dispute between the adult children of the late Ricco Legler (from his first marriage) and his widow (Marina). The adult children claimed that Marina’s appointment of a sole corporate trustee was void as a fraud on a power. The plaintiffs’ claim was dismissed by Downs J on 2 June 2021.2

[3]The plaintiffs appealed and Downs J granted interim relief pending appeal.3

[4]                   On 16 March 2022, following the lapse of an interim arrangement between the parties, the plaintiffs applied without notice (on a Pickwick basis) for an urgent interim order requiring Marina and the corporate trustee to comply with Downs J’s injunction pending further order of the Court. Rather than deal with the application on a without notice/Pickwick basis, I directed an urgent hearing.

[5]                   The interlocutory dispute concerned Marina’s proposed access to $1 million held on term deposit given that she had personally paid all the defendants’ legal costs in the proceeding.

My earlier judgment

[6]                   I concluded that Downs J’s interim order of 18 October 2021 did not restrain use of the $1 million held on term deposit. I declined to grant the plaintiffs further interim relief restraining Marina from accessing the $500,000 sought from one term deposit pending appeal.

1      Legler v Formannoij [2022] NZHC 586.

2      Legler v Formannoij [2021] NZHC 1271.

3      Legler v Formannoij [2021] NZHC 2759.

[7]                   In relation to costs, I said that costs ordinarily follow the event, but noted that Mr Bigio QC, for the plaintiffs, had signalled that he wished to be heard in relation to costs given the way the issue developed.

Costs sought

[8]The defendants…