Lim-Yip v Lim - [2023] NZHC 1551

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-528

[2023] NZHC 1551

UNDER Part 18 of the High Court Rules, section 66 and 51 of the Trustee Act 1956 and the High Court’s inherent supervisory jurisdiction in relation to trusts

IN THE MATTER

Of the C N Lim Family Trust, a trust established by deed dated 1 July 1981

BETWEEN

HONG LIM-YIP (previously known as Hong Lim Yip) and MING LIM-YIP (previously known as Ming Yip Lim) as trustees of the C N Lim Family Trust

Plaintiffs

AND

STEVEN YIP LIM as trustee of the C N Lim Family Trust

Defendant

Hearing: On the papers at Auckland

Judgment:

21 June 2023

JUDGMENT (NO.2) OF POWELL J

This judgment was delivered by me on 21 June 2023 at 1.00 pm pursuant to
R 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

HONG LIM-YIP and MING LIM-YIP v STEVEN YIP LIM [2023] NZHC 1551 [21 June 2023]

[1] On 12 October 2022, I dismissed an application brought by the defendant, Steven Yip Lim (“Steven”).1 Steven had sought orders requiring that he and the plaintiffs (Hong Lim-Yip and Ming Lim-Yip), as the trustees of the C N Lim Family Trust, determine whether any amounts were owed under a particular mortgage, and if so, that the amounts still owing be paid out to their mother’s estate.2

[2] Steven’s application was made pursuant to a leave reserved clause contained in consent orders made by me in 2021, to implement a settlement reached by the parties during the substantive hearing of these proceedings.3 In my judgment I concluded Steven’s application was “simply untenable” and outside the ambit of the leave reserved clause,4 and that any suggestion that Steven thought such an enquiry would take place lacked credibility.5

[3] Given my conclusions I awarded indemnity costs against Steven in favour of both the plaintiffs and Vicki Ammundsen Trust Law (“VATL”), the latter being a firm of solicitors who had been appointed by the Court to complete the sale of a property at Hobsonville.6 While there was sufficient information to make the costs order in favour of VATL,7 there was no detail of the actual costs claimed by the plaintiffs. Accordingly, a further timetable order was made to enable those details to be provided and for Steven to be given the opportunity to respond.

[4] Although the parties complied with those directions, other commitments have prevented me from finalising the costs payable for which I apologise to the parties.

The positions of the parties

[5] The plaintiffs seek an order for payment of their costs incurred in relation to Steven’s application in the total sum of $35,612.33 including disbursements of

1 Lim & Ors v Yip [2022] NZHC 2631.
2 At [1].
3 At [4].
4 At [9].
5 At [13].
6 At [24] and [25].
7 At [25].

$207.28. In addition, an order is also sought authorising VATL to deduct monies held on trust for…

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 Lim-Yip v Lim

Details

AGLC: Lim-Yip v Lim [2023] NZHC 1551
Case: [2023] NZHC 1551
Decision Date: 21 June 2023

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, dealt with a dispute involving the C N Lim Family Trust, which was established by a deed dated 1 July 1981. The plaintiffs, Hong Lim-Yip and Ming Lim-Yip, who are trustees of the Trust, sought an order for payment of their costs incurred in relation to an application brought by the defendant, Steven Yip Lim, who is also a trustee of the Trust. Steven had sought orders requiring the trustees to determine whether any amounts were owed under a particular mortgage and, if so, that the amounts be paid out to their mother's estate. The plaintiffs sought an order for payment of their costs incurred in relation to Steven’s application in the total sum of $35,612.33 including disbursements of $207.28, and an order authorising Vicki Ammundsen Trust Law to deduct monies held on trust for the defendant to meet any award of costs.

The court had to decide whether the costs claimed by the plaintiffs were reasonable and not excessive, whether there was any basis for doubting that the invoiced costs were reasonably incurred and not excessive, and whether there was any obvious duplication in the costs claimed. The court also had to determine whether costs were incurred attempting to settle the issues between the parties and whether those should be regarded as reasonably incurred.

The court examined the summary of the plaintiffs' legal costs and relevant invoices from the counsel acting and the solicitors and found that there was no basis for doubting that the invoiced costs were reasonably incurred and not excessive. The court was also satisfied there was no obvious duplication and that costs were incurred attempting to settle the issues between the parties. The court found that there was no basis for excluding communications with Vicki Ammundsen Trust Law given the subject matter of the application. Therefore, the court ordered that Steven was to pay the plaintiffs $35,612.33 out of his share of the Trust funds, being costs of $35,405.05 and disbursements of $207.28. The court also ordered that Vicki Ammundsen Trust Law may deduct monies held on trust for Steven to meet the outstanding award of costs and disbursements in favour of Vicki Ammundsen Trust Law.

Orders