Longmann v Hudd - [2013] NZHC 2133

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2011-419-1853 [2013] NZHC 2133

IN THE MATTER OF the Trustee Act 1956

BETWEEN LAURETTE MARY CHAUVAL LONGMANN
Plaintiff

ANDRAYMOND WALKER HUDD Defendant

Hearing: On the papers

Counsel: DJ Hayes for plaintiff
AJ Ryan for Chartwell Law Limited, non-party

Judgment: 22 August 2013

JUDGMENT OF ASSOCIATE JUDGE FAIRE [for costs]

This judgment was delivered by me on 22 August 2013 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Hunwick Law Ltd, Hamilton
Chartwell Law Ltd, Hamilton

LONGMANN v HUDD [2013] NZHC 2133 [22 August 2013]

[1] The plaintiff filed an application on 17 December 2012 seeking orders pursuant to r 8.21 that three non-parties to this litigation give particular discovery.

[2] This judgment deals with the question of costs in relation to that part of the application which sought an order as follows:

That Chartwell Law (Lynn Tarrant) provide all documents relating to the sale of the property at 771 Opouteke Road, Pakotai and the Longmann Hudd Family Trust.

[3] The application was supported by an affidavit by the plaintiff. Paragraph 4 of that affidavit deals specifically with Chartwell Law’s position and records as follows:

Chartwell Law was used by the Defendant with regard to the sale of the property at 771 Opouteke Road Pakotai. There was a loss on the sale and the defendant is claiming I should personally pay for some of the loss so I believe it is important to have the full file of information available. I understand the defendant is also asserting he did not get legal advice on this transaction.

[4] Paragraph 5 of that affidavit stated as follows:

I believe the complete file of dealings with the above non-parties is required for these proceedings so as to give a complete picture of the transactions that have occurred. I do not believe information can be obtained from any other source.

[5] In this proceeding, the plaintiff and defendant are trustees of the Longmann Hudd Family Trust. There are a number of issues in respect of the administration of that trust with which the plaintiff and defendant disagree. The current proceeding is a request to the court to invoke its jurisdiction pursuant to s 64 of the Trustee Act
1956 and, in particular, to direct the trustees to repay in full from funds held in a

solicitors’ trust account a mortgage granted by Westpac Bank.

[6] Following service of the application on Chartwell Law Ltd and Ms Lynn Tarrant a notice of opposition and affidavit was filed by her. In that affidavit Ms Tarrant swore as follows:

2.In the applicant’s affidavit of 14 December 2012 at paragraph 4, the applicant states that the law firm of Chartwell Law acted for the

defendant with regard to the sale of the property at 771 Opouteke
Road Pakotai.

3.The law firm of Chartwell Law did not act for Mr Raymond Hudd the defendant in these proceedings in the sale of the property at

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 Longmann v Hudd

Details

AGLC: Longmann v Hudd [2013] NZHC 2133
Case: [2013] NZHC 2133
Decision Date: 22 August 2013

CaseChat Overview and Summary

In the case of Longmann v Hudd, the plaintiff, Lauratte Mary Chauval Longmann, filed an application seeking orders for discovery from three non-parties, one of whom was Chartwell Law Limited. The primary focus of the application was to obtain documents related to the sale of property at 771 Opouteke Road, Pakotai, and the Longmann Hudd Family Trust. The defendant, Andraymond Walker Hudd, was also a trustee of the family trust and was involved in the sale of the aforementioned property. The plaintiff's affidavit argued that obtaining the full file of information from Chartwell Law was crucial to understanding the transactions and to address the defendant's claim that the plaintiff should compensate for some of the loss incurred in the sale.

The court was required to decide whether Chartwell Law Limited should be ordered to provide the requested documents and, if so, whether the plaintiff should bear the costs of such an order. Chartwell Law Limited filed an affidavit in opposition, stating that it had not acted for the defendant in the sale of the property and that any documents it may have held were lost due to a computer failure. Chartwell Law Limited further clarified that any discussions it had with the defendant regarding the trust were minimal and did not result in any written advice or instructions.

The court, Associate Judge Faire, ruled that the plaintiff's application should be dismissed as the plaintiff had not established a need for the documents beyond what was already available from other sources. The court found that the steps taken by Chartwell Law Limited were reasonable, despite the plaintiff's failure to informally inquire about the documents before filing the court application. The court also determined that Chartwell Law Limited was entitled to be indemnified for the costs incurred in responding to the application, which amounted to $2,315.65. The court's decision was based on the reasonableness of the costs and the absence of any overriding reasons to deny the non-party's entitlement to recover its costs.

The final order of the court was that the plaintiff, Lauratte Mary Chauval Longmann, pay Chartwell Law Limited the costs and disbursements of $2,315.65.

Orders