Legler v Formannoij - [2022] NZHC 660

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 660

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: 14 February 2022

Appearances:

J D McBride and R C Wood for the applicants/defendants

D R Bigio QC and J W H Little for the respondents/plaintiffs

Judgment:

1 April 2022

JUDGMENT OF HARLAND J

(Application by defendants for enforcement of an interlocutory order under r 7.48)

This judgment was delivered by me on 1 April 2022, at 1:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Counsel/Solicitors:
TGT Legal, Auckland Martelli McKegg, Auckland D R Bigio QC, Auckland
J D McBride, Auckland J W H Little, Auckland R C Woods, Auckland

LEGLER v FORMANNOIJ [2022] NZHC 660 [1 April 2022]

Introduction

[1] The importance of an undertaking as to damages when an interlocutory injunction is granted is recognised by the requirement in r 7.54, High Court Rules 2016 (HCR). This case exemplifies why this is so. I am asked to determine whether such an undertaking can be implied from the time the interlocutory application in this case was granted, or whether it only applies from the time the trial Judge ordered it in the context of an application for a stay of his substantive judgment, pending an appeal. That substantive judgment dismissed the claim by the party who had benefitted from the injunction.

[2] The application, notice of opposition and subtleties of the arguments made in respect of them before me are best understood against their background. For this reason, I set out the details of the application and opposition after the factual background, which I now address.

Background

The parties and their relationships1

[3] Ricco Legler and Maria Formannoij met and began their relationship in 1989. They moved to New Zealand in 1991 and married in 2009.

[4] In 2017, Ricco Legler died unexpectedly. He was survived by Ms Formannoij and his three adult children from an earlier marriage, Li, Laila and Ken Legler (collectively referred to as “the children”).

[5] Ricco Legler’s father was a successful Italian businessman. He died in 2002, leaving Ricco a significant inheritance. This led to the creation of two family trusts: the Horowai Family Trust and the Kaahu Trust.

1 Most of the following has been taken from the judgment of Downs J of 2 June 2021, Legler v Formannoij [2021] NZHC 1271, (2021) 5 NZTR 31-006 at [2] – [12].

[6] The Horowai Trust was established on 2 March 2007. Its sole trustee is Horowai Trustee Co Ltd (Horowai Trustee). The directors of Horowai Trustee were formerly Ricco and Li, but now are Li and Laila Legler.

[7] The Kaahu Trust was established on 9 June 2008. Its trustees were Ricco, Ms Formannoij, and BOI…

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 Legler v Formannoij

Details

AGLC: Legler v Formannoij [2022] NZHC 660
Case: [2022] NZHC 660
Decision Date: 1 April 2022

CaseChat Overview and Summary

In this case, the plaintiffs, Li Kari Legler, Laila Sun Legler Klaui, and Ken Legler, filed a claim against Maria Guillaumna Cornelia Johanna Formannoiij and Kaahu Trustee Limited, the latter being the trustee of the Kaahu Trust. The plaintiffs sought various reliefs, including the appointment of an independent trustee, alleging that Formannoiij’s appointment of Kaahu Trustee Limited as an additional trustee was a fraud on a power and void. The defendants opposed the claim and counterclaimed for relief from the interim injunctions previously granted. The court had to decide whether the plaintiffs complied with the undertaking as to damages when they sought the interlocutory injunction, and if not, whether such an undertaking could be implied from the time the interlocutory application was granted or if it only applied from the time the trial judge ordered it in the context of an application for a stay of his substantive judgment.

The court found that the plaintiffs did not provide an undertaking as to damages when they sought the interlocutory injunction from Brewer J. However, the court concluded that the undertaking provided by the plaintiffs did comply with Downs J’s judgment as the injunction by Brewer J was a different and discharged injunction. The court also held that it was not appropriate to engage with the defendants’ argument that an undertaking could be implied into Brewer J’s injunction at this time, as this would only be necessary if it became clear that the defendants had suffered any particular loss as a result of the grant of Brewer J’s injunction and brought proceedings to recover that loss.

The application by the defendants was dismissed, and if costs could not be agreed, the plaintiffs were to file and serve a memorandum in relation to costs within 14 days of the date of receipt of this judgment. The defendants were to file any memorandum in reply no later than 14 days thereafter. Costs would be dealt with on the papers unless the court considered upon reading the memoranda that a further hearing was required.

Final orders:
1. The application by the defendants is dismissed.
2. If costs cannot be agreed, the plaintiffs are to file and serve a memorandum (not exceeding three pages) in relation to costs within 14 days of the date of receipt of this judgment.
3. The defendants are to file any memorandum in reply (not exceeding three pages) no later than 14 days thereafter.
4. Costs will be dealt with on the papers unless the Court considers upon reading the memoranda that a further hearing is required.

Orders