Mackintosh v Thomas - [2020] NZHC 860

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-171

[2020] NZHC 860

BETWEEN JOHN BOWDEN MACKINTOSH and MATTHEW CHADLOW HALL
Plaintiffs

AND

PHILIP DEAN THOMAS

First Defendant

ALISON MARGARET SYME
Second Defendant

SIMON THOMAS REED and MARK WREFORD REED

Third and Fourth Defendants

ELEANOR MARY MARR

Fifth Defendant

Hearing:
2-5 December 2019

Further submissions 13, 17, 18, 20 December 2019,
20 and 22 January 2020

Counsel:

C A McVeigh QC, G M Brodie and R Cooper for Plaintiffs H A Evans and D Weatherley for First Defendant

R J B Fowler QC and B R D Burke for Second Defendant J Johnson for Third and Fourth Defendants

K W Clay for Fifth Defendant

Judgment:

30 April 2020

JUDGMENT OF CHURCHMAN J

JOHN BOWDEN MACKINTOSH and MATTHEW CHADLOW HALL v PHILIP DEAN THOMAS [2020] NZHC 860 [30 April 2020]

TABLE OF CONTENTS

Summary of the case [1]

Background [7]

The Will  [20]
Indemnities  [23]
Heads of Agreement  [26]
Justification for the application  [32]
The orders sought  [38]

Jurisdiction of the Court to make the orders sought [39]

Mediation Heads of Agreement [44]

Frustrated contract? [57]

Approach to giving directions [61]

Column One – Issues between trustees and one or more respondents                [63] The true meaning and effect of clauses 34 and 35 in the HOA  [63] Halkett water agreement  [85]
Halkett water meter  [96]
Nordean indemnity  [104]
Apportionment of costs of administration  [123]
Trustees’ indemnity and securities  [141]
Credit line  [157]
Transactions  [171]
Release of securities for indemnities  [180]
Indemnity for the respondents  [186]
Gross negligence and wilful misconduct  [192]
Indemnity to Philip  [197]
Any other land?  [199]
Appeal rights  [203]
Shortfall payments  [210]
Consent order for varying Will  [220]
Clause 29 transactions  [225]
Distributing assets and finalising the estate  [280]
Column Two – Applications for directions that are consented to by the
respondents and are workable  [303]

Consent declarations [303]

Column Three – Consented to by the parties but need to be made workable [348]

Column Four – Issues disputed between the parties [351] The $94,444.14 payment [351]

“Other beneficial interest” [368]

Clause 10 – Debts claimed by Philip  [394]
Money owed to the estate on account of NT Farming  [396]
Interest on accounts  [398]
Malley & Co debt  [404]
Court of Appeal payments  [415]
Contentious submissions  [437]

Conclusion [442]
Costs [444]

Summary of the case

[1] This is an application by trustees in relation to the administration of an estate. The application sought declarations in respect of over 30 separate topics.

[2] Initially there were also applications by three of the respondents seeking multiple directions. Many of the issues raised by the respondents have been subsumed into the declarations sought by the trustees, others have been abandoned and a small number remain to be determined.

[3] This is the ninth time that the trustees have had to come to the Court for directions. There are a number of reasons for this extensive litigation history. The affairs of the testator were…

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 Mackintosh v Thomas

Details

AGLC: Mackintosh v Thomas [2020] NZHC 860
Case: [2020] NZHC 860
Decision Date: 30 April 2020

CaseChat Overview and Summary

The case of Mackintosh v Thomas is an application by trustees for directions in relation to the administration of a complex estate. The estate of Norman Dean Thomas, a successful Canterbury farmer, was valued at over $20 million at the time of his death. The trustees, John Bowden Mackintosh and Matthew Chadlow Hall, were appointed to administer the estate in accordance with the terms of Norman's Will. However, the estate's administration has been complicated by the attitudes and actions of the respondents, who have been disputatious, unreasonable, and uncooperative. The trustees have sought directions on over 30 separate topics to facilitate the final resolution of the estate and the distribution of its assets. The High Court of New Zealand has jurisdiction to make the orders sought under s 66 of the Trustee Act 1956 and the Declaratory Judgments Act 1908. The Court has made various declarations on the issues raised, including the meaning and effect of clauses in the Heads of Agreement, the apportionment of costs of administration, the trustees' indemnity and securities, and the resolution of various disputes between the parties. The Court has also made orders in relation to interest on accounts, the Malley & Co debt, and the Court of Appeal payments. The Court has invited the trustees to prepare and file an order in terms of the declarations set out in this decision. The trustees' costs are to be paid by the estate, and all other parties' costs lie where they fall.

Orders