Lieven v Grieve
[2025] NZCA 169
•21 May 2025 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA453/2024 |
| BETWEEN | TANYA MARIA LIEVEN |
| AND | GRAEME STEPHEN GRIEVE |
| Hearing: | 24 March 2025 |
Court: | Ellis, Dunningham and Harvey JJ |
Counsel: | D G Dewar and G L Bryce for Appellant |
Judgment: | 21 May 2025 at 10.00 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
B The judgment dated 14 June 2024 is set aside.
CThe proceedings are remitted to the High Court.
D Costs are to lie where they fall.
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REASONS OF THE COURT
(Given by Harvey J)
During a 20-year marriage, Tanya Lieven and Graeme Grieve acquired several properties and established trusts to manage them. In December 2021, following the parties’ separation, Ms Lieven filed a claim alleging that Mr Grieve had breached his trustee obligations, including by misusing trust funds and failing to keep proper records, while holding property as a bare trustee on her behalf.[1] Mr Grieve denied the allegations and counterclaimed that Ms Lieven had not accounted for rental income from certain residential properties and had instead used those funds personally.
[1] Ms Lieven also brought two additional causes of action seeking removal and replacement of Mr Grieve as trustee, and registration of a change by the Registrar General of Land. However, these were resolved and abandoned in February 2023.
On 3 May 2023, Gwyn J made preliminary findings and directed the parties to file further evidence (the May Judgment):[2]
[61] I am satisfied that there is a duty on the defendant, as bare trustee in relation to the property, to account. As I have set out above, I am not satisfied on the evidence before me that there has been a breach of that duty. A further inquiry is necessary if the Court is to reach a conclusion on that claim and on the defendant’s counterclaim.
[62] Accordingly, I make the following directions:
(a)The plaintiff shall provide the defendant with access to the Kāpiti house at an agreed time, in order for him to collect items required by him to explain the transactions that the plaintiff has called into issue. The defendant is to attend at the Kāpiti house in the company of a support person, whose identity shall be notified to the plaintiff in advance of the visit.
(b)On acquiring all necessary material, the defendant shall have a period of 60 days to reconcile the material and provide it to the plaintiff, through counsel.
(c)Within the same timeframe, the plaintiff is to provide a supported accounting in respect of the defendant’s counterclaim and is to provide that to the defendant through counsel.
(d)Once those steps are completed, if either party is not satisfied with the material provided by the other, leave is granted to return to the Court to seek further directions, which may include directions pursuant to pt 16 of the [High Court Rules 2016].
[2] Lieven v Grieve [2023] NZHC 1034 [May judgment].
As set out above, Ms Lieven was to provide Mr Grieve with access to the home in Kāpiti to obtain relevant documents. However, despite being granted access, Mr Grieve claimed that he could not locate any additional documents and he believed Ms Lieven had removed them. Ms Lieven denied the allegation and claimed that all documents had been provided to Mr Grieve.
Mr Grieve’s counsel filed a memorandum on 5 October 2023 recording the above and sought for the proceedings to be dismissed on the basis that the High Court’s directions had not been complied with. This memorandum was accompanied by an affidavit sworn by Mr Grieve.
It seems Ms Lieven’s counsel was unwell at this time — causing her to eventually seek new counsel in late 2023. Ms Lieven drafted her own response to the 5 October 2023 memorandum in the form of a memorandum dated 18 December 2023. She advised her lawyer was unwell and rejected Mr Grieve’s account in trenchant terms.
On 20 December 2023, Ms Lieven’s new counsel first contacted the High Court registry and asked whether there were any pending steps in the proceeding. The registry replied that there were “no future events for this matter. The substantive hearing was on 22 February 2023. Judgment was delivered on 3 May 2023.”
A notice of change of solicitor was filed on Ms Lieven’s behalf two days later (on 22 December 2023).
It seems that, at some point after this, the file was referred back to the High Court Judge. We do not know whether she was made aware of Ms Lieven’s change of counsel or of the inquiry that had been made of the Registry, but we suspect she was not. On 14 June 2024, based on the available evidence, and in light of the apparent non-compliance with her earlier directions, the Judge dismissed both the claim and counterclaim (the June Judgment).[3]
[3] Lieven v Grieve [2024] NZHC 1560 [June judgment] at [26].
Ms Lieven now appeals that decision on the grounds that:
(a)The Judge erred by failing to appreciate or have proper regard to the documents Ms Lieven filed with the Court and provided to Mr Grieve in her attempt to comply with directions made in the May Judgment.
(b)The Judge’s finding that the Court could not be satisfied of a breach of trust obligations on the evidence before the Court was unreasonable because the Court had evidence of receipt of money belonging to Ms Lieven by Mr Grieve for which he had not accounted.
(c)A miscarriage of justice had occurred as the June Judgment was decided without Ms Lieven or her counsel receiving any notice a judgment was under consideration.
Ms Lieven seeks orders that the June Judgment be overturned and that the proceedings be remitted to the High Court. Mr Grieve opposes the appeal.
In summary, our overarching conclusion is that the principle of natural justice requires that the case be remitted back, particularly given the submission made before us that there is, in fact, further relevant evidence that had not been provided to Mr Grieve or the High Court. It seems to us there were case management challenges involving both the registry and the parties which may have unfairly resulted in the premature disposition of the proceedings.
For example, while we acknowledge the point made by counsel for Mr Grieve that her October 2023 memorandum invited the Court to dismiss Ms Lieven’s claim for breach of trust, the usual course would be for counsel to have filed a formal application seeking dismissal. That would have alerted Ms Lieven’s new counsel to the fact that there was a live application which required a response. It might have also triggered a case management conference which could have canvassed applications for relevant orders. At the very least, it would likely have resulted in further timetabling directions.
Similarly, while we understand Mr Dewar’s reliance on the communication from the Court registry that there was nothing further scheduled for the proceedings, it might have been prudent (at least with hindsight) to seek a case management conference to progress the matter. The possibility of an amendment to the pleadings could, for example, have been raised. While we acknowledge that an earlier proposal to amend the claim was rejected by the Judge, that was prior to the instruction of new counsel and before additional evidence was identified. In any event, given our overall conclusion in light of the changed circumstances, this will now be a matter for the High Court to consider.
We also acknowledge that, at an important point in the proceedings, Ms Lieven was not represented. The fact that this affected her approach to the case is evident from her memorandum, which is unclear as to what further directions or steps she was seeking.
It follows that we consider the appeal should be allowed and the matter referred back to the High Court for further direction. Although Mr Grieve suggested this course would be futile due to the apparent absence of the necessary material to progress matters, that position is less tenable in light of Mr Dewar’s advice that additional relevant documents have now been located and that a robust review of the pleadings was necessary. We are also satisfied that a referral back is necessary due to the complexity of the factual background, the evidence of the various transactions complained of on both sides and the value of the properties in dispute.
In arriving at this conclusion, we make no criticism of the learned High Court Judge. Gwyn J made it clear that she was not satisfied that there was sufficient evidence to support the claim or the counterclaim. She directed that further relevant evidence needed to be provided. It seems that, as far as the Judge was aware and based on the memoranda that had been filed, compliance with that direction remained inadequate. This point is underscored by the fact that confirmation of the additional available evidence only occurred at the appeal hearing.
Costs
At the conclusion of the hearing, we raised the issue of costs with counsel. Having heard from them, our view is that costs should lie where they fall. While Ms Lieven has prevailed, she bears some responsibility for the unsatisfactory way in which events unfolded in the Court below.
Result
The appeal is allowed.
The judgment of the High Court dated 14 June 2024 is set aside.
The matter is remitted back to the High Court.
Costs are to lie where they fall.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant
McCabe and Company, Wellington for Respondent
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