MacNamara v MacNamara - [2023] NZHC 944

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000404

[2023] NZHC 944

BETWEEN
SHERYL ANN MACNAMARA

Plaintiff

AND

NOEL JAMES MACNAMARA

Defendant

CIV-2020-404-000646

BETWEEN

NOEL JAMES MACNAMARA
Plaintiff

AND

SHERYL ANN MACNAMARA

First Defendant

Continued overleaf…

Hearing: On the papers

Judgment:

27 April 2023

JUDGMENT OF WYLIE J

[Costs]

This judgment was delivered by Justice Wylie
On 27 April 2023 at 11.00 am Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Shieff Angland Lawyers/L J Kearns KC/J S Langston, Auckland Claymore Partners Ltd/B O’Callahan, Auckland
J Cundy Auckland

MACNAMARA v MACNAMARA [2023] NZHC 944 [27 April 2023]

BETWEENSHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA AND GRAHAM
LINCOLN WILFRED CRAIG as trustees of the MACNAMARA HOME TRUST
Second Defendants

ANDSHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA AND GRAHAM
LINCOLN WILFRED CRAIG as trustees of the MACNAMARA FAMILY TRUST
Third Defendants

Introduction

[1] I refer to my reserved judgment dated 3 April 2023.1 I there made various directions under s 133 of the Trusts Act 2019 at the request of the independent trustees, Christopher Darlow and William Patterson. I held that they were entitled to be indemnified from the assets of the Trusts for their reasonable costs and disbursements in bringing the application. I also recorded that Ms Macnamara had signalled that she intended to seek costs against Mr Macnamara and I made various directions for the filing of memoranda in that regard.

[2]I have now received those memoranda.

(a)Ms Macnamara seeks costs from Mr Macnamara on a 2B basis in the sum of $8,006.50. The memorandum filed on her behalf does not explain why she is entitled to costs.

(b)Mr Macnamara opposes Ms Macnamara’s request for costs. He says that costs should fall equally as between the parties because they were incurred in relation to directions sought by the trustees and because the directions benefited both parties.

Analysis

[3] Special rules have been devised in the Court’s equitable jurisdiction to guide parties to trusts-related litigation. Costs in such cases remain at the discretion of the Court but case law provides litigants with some guidance as to how the discretion is likely to be exercised.2

[4] The classic exposition of the applicable principles was given by Kekewich J in Re Buckton.3 In that case, the Judge divided Trust litigation into three broad categories:4

1      Macnamara v Macnamara [2023] NZHC 715.
2      Woodward v Smith [2014] NZHC 407, [2014] 3 NZLR 525 at [22].
3      Re Buckton [1907] 2 Ch 406; Woodward v Smith, above n 2, at [22]–[25].
4      Woodward v Smith, above n 2, at [23].

(a)The first category involves proceedings brought by trustees to obtain the Court’s guidance on the construction of the Trust deed or some aspect of the Trust’s administration. In such cases, the costs of all parties necessarily participating are treated…

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 MacNamara v MacNamara

Details

AGLC: MacNamara v MacNamara [2023] NZHC 944
Case: [2023] NZHC 944
Decision Date: 27 April 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Sheryl Ann MacNamara filed a case against Noel James MacNamara, with a subsequent counter-claim from Noel James MacNamara against Sheryl Ann MacNamara. The dispute primarily involved the application of trust law principles in relation to costs incurred during litigation concerning the administration of two family trusts. The court had to determine whether the costs incurred by Sheryl Ann MacNamara in opposing Noel James MacNamara’s submissions should be borne by Noel James MacNamara or shared between the parties. The legal issues centred on the categorisation of the litigation under the equitable jurisdiction and the discretionary nature of costs in trust-related litigation.

The court referred to established case law and principles to classify the nature of the litigation. The case fell under the third category, where a beneficiary makes a "hostile claim" against another beneficiary or trustee. The court concluded that Noel James MacNamara’s submissions were not bona fide related to the administration of the trusts but were instead aimed at improving his position at Sheryl Ann MacNamara’s expense. Consequently, the court found that Sheryl Ann MacNamara’s costs should be met by Noel James MacNamara. The court assessed the reasonableness of the claimed costs and found them to be properly calculated according to the High Court Rules.

Following the analysis, Justice Wylie awarded costs of $8,006.50 to Sheryl Ann MacNamara against Noel James MacNamara. The court's reasoning was based on the classification of the litigation as a hostile claim and the discretionary exercise of the court’s jurisdiction over trust-related costs. The final orders of the court included the awarding of these costs to Sheryl Ann MacNamara.

Orders