Mason v Triezenberg

[2021] NZCA 131

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA91/2019
 [2021] NZCA 131

BETWEEN	ALEXANDER CHARLES MASON Appellant
AND	VICKI ANN TRIEZENBERG AND PAUL MORLEY DODD Respondents

Court:	Miller, Brewer and Dunningham JJ
Counsel:	G J Thwaite for Appellant VTM Bruton QC and J P Cundy for Respondents
Judgment: (On the papers)	23 April 2021 at 10.00 am

JUDGMENT OF THE COURT

A        The application for leave to adduce further evidence is declined.

BThe respondents are entitled to costs as for a standard application on a band A basis, plus usual disbursements.

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REASONS OF THE COURT

(Given by Miller J)

1. This judgment relates to an application for leave to adduce further evidence on an appeal from a judgment of Fitzgerald J, in which the Judge removed Mr Mason as a trustee of two family trusts and refused to remove his co-trustees.[1]  The appeal itself was set down to be heard on 24 March 2021, but Miller J adjourned it because it appeared that the application for further evidence might require the respondents to respond in detail and the Court to undertake an extensive enquiry into contested facts.

   [1]Triezenberg v Mason [2019] NZHC 14.

2. Mr Mason wishes to adduce two affidavits of his own.  The first, dated 28 August 2020, is allegedly relevant to the question whether the respondents are suitable trustees.  He complains that he is subject to orders for payment of costs and the trustees have refused to give him money to pay them.  He says he is at risk of bankruptcy.

3. We accept that to some extent this evidence appears to be fresh in that it relates to exchanges about costs since the High Court judgment, but in order to evaluate the claim that the respondents’ behaviour shows they are not suitable trustees it would be necessary to traverse a great deal of factual material, effectively as a court of first instance.  Nor are we persuaded that the evidence is of such direct relevance that it must be admitted in the interests of justice.  The principal question on appeal is whether Mr Mason himself was properly removed as a trustee of family trusts which he had settled.  The question whether the respondents ought to have been removed will turn on issues discussed at some length in the judgment below.  It is by no means obvious that the respondents refused him money to pay some of these costs, all of which were properly awarded against him, or that it was an error on their part to refuse to pay costs he had needlessly incurred.  To the extent that Mr Mason does have a complaint about post-trial conduct, it can be the subject of a separate application for a direction that he be paid from trust funds, to the extent he has not been.  We note that the respondents assert through counsel that Mr Mason has now paid some of the costs and is no longer at risk of bankruptcy.

4. The second affidavit, dated 22 December 2020, evidently seeks to relitigate issues which were resolved in the Family Court and High Court.  The argument appears to be that the Judge was wrong to find that a doctor at Middlemore Hospital lawfully issued a certificate activating an enduring power of attorney for Mr Mason’s wife on 10 August 2015.  It is far from clear that, if correct, this evidence would have any bearing on the decisions that are the subject of the appeal.  It was common ground in the High Court that Mrs Mason, who suffers from dementia, had to be removed as a trustee.  Nor is the evidence fresh; Mr Mason could have led evidence in the High Court about validity of the certificate, if it were relevant.

5. It is regrettable that Mr Mason should have pursued these unnecessary applications.  They are declined.  The respondents are entitled to costs as for a standard application on a band A basis, plus usual disbursements.

Solicitors:
Lee Salmon Long, Auckland for Respondents