McCallum v McCallum

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA294/2020
[2020] NZCA 497

BETWEEN	WILLIAM FRASER MCCALLUM JUNIOR Appellant
AND	CARRICK ROBERT ZACHARY MCCALLUM, CALLUM FRASER MCCALLUM AND MCCALLUM INDEPENDENT TRUSTEES LIMITED AS TRUSTEES OF THE MCCALLUM FAMILY TRUST First Respondents CARRICK ROBERT ZACHARY MCCALLUM AND CALLUM FRASER MCCALLUM AS EXECUTORS OF THE ESTATE OF WILLIAM FRASER MCCALLUM SENIOR Second Respondents

Hearing:	12 October 2020
Court:	Kós P, Brown and Clifford JJ
Counsel:	D A T Chambers QC for Appellant K G Davenport QC and A M Cameron for Respondents V T M Bruton QC for Fiona McCallum
Judgment:	15 October 2020 at 3 pm

JUDGMENT OF THE COURT

AThe application by Fiona McCallum to be joined as a respondent is granted.
BThe application to adduce further evidence on appeal is granted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

These proceedings concerning the estate of the late William McCallum Sr and two trusts settled by him have generated a slew of paper and cost. We shall avoid adding to either.
The present appeal is from a judgment of Gwyn J granting in part an application by the respondent trustees for a Beddoe order indemnifying the trustees against reasonable costs incurred in defending two sets of proceedings brought against them by the appellant, William McCallum Jr.[1] His sister, Fiona McCallum, has since joined with her brother as a plaintiff in the underlying proceedings. Ms McCallum has underlying health issues and her affairs are managed under the Protection of Personal and Property Rights Act 1988.
[1]Re McCallum [2020] NZHC 907 [High Court judgment].
The circumstances of the litigation are set out at [7] of the judgment on appeal. It is unnecessary to repeat them.
There are now two applications before us.[2]

Participation in appeal

[2]Ms Davenport QC withdrew an application for confidentiality orders given an intimation by the Court that it did not intend to alter the orders made by Gwyn J prior to hearing the substantive appeal.

The first application is for Ms McCallum to be added as a respondent to the appeal, pursuant to r 48 of the Court of Appeal (Civil) Rules 2005. Ms McCallum’s interests in the litigation are closely aligned to those of her brother. She was served with the Beddoe application and entered an appearance at the hearing via her property manager and a litigation guardian. She has not appealed Gwyn J’s judgment, but it is plainly appropriate that she be able to be heard on the appeal. Mr Cameron accepts that for the respondents.
The scope of Ms McCallum’s participation will be defined by Ms Bruton QC’s submission: “that her counsel would make brief submissions supplemental to those made by William Jnr’s counsel in support of the appeal, and in reply, from Fiona’s perspective”.
On that basis we direct Ms McCallum be joined as a respondent to the appeal.

Further evidence on appeal

The second application by Ms McCallum is to adduce evidence of the post‑judgment amended statements of claim in which she has since been joined as a plaintiff. This event was anticipated in the judgment appealed.[3]
[3]High Court judgment, above n 1, at [66]–[67].
The current state of the underlying proceedings is relevant to the appeal. The application sensibly could not be opposed. Sensibly, Mr Cameron did not oppose. The making of a Beddoe order (or a partial order of that kind) does not of course preclude amendment of the underlying proceedings, inconvenient as that may be.
Mr Cameron does express concern as to the implications for further evidence that might be required from the respondents. In particular in relation to a new pleading of unconscionable dealing. That is a matter counsel will need to reflect on; it cannot be dealt with here and now. Any further application will need to be directed to the panel hearing the appeal.
The appeal itself is now ready for hearing and should be set down without delay.

Result

The application by Ms McCallum to be joined as a respondent is granted.
The application to adduce further evidence on appeal is granted.

Solicitors:
Kelly Flavell Law, Auckland for Appellant
ASCO Legal Limited, Auckland for Respondents
Haigh Lyon, Auckland for Fiona McCallum

CaseChat Overview and Summary

The case of McCallum v McCallum involves an appeal by William Fraser McCallum Junior against the decision of Gwyn J, who granted in part an application by the respondent trustees for a Beddoe order. The appeal concerns the estate of the late William McCallum Sr and two trusts settled by him. The primary issue before the Court of Appeal was whether Fiona McCallum, William McCallum Jr's sister, should be joined as a respondent in the appeal, and whether further evidence should be admitted regarding the post-judgment amended statements of claim. The Court of Appeal, presided over by Kós P, Brown, and Clifford JJ, considered these applications in light of the close alignment of Fiona McCallum's interests with those of her brother, and the relevance of the amended statements of claim to the appeal.

The Court of Appeal addressed the legal issues by granting Fiona McCallum's application to be joined as a respondent, as her interests were closely aligned with those of William McCallum Jr. The Court also granted the application to adduce further evidence on appeal, as the current state of the underlying proceedings was relevant to the appeal. The Court noted that the making of a Beddoe order did not preclude amendment of the underlying proceedings, and that the appeal was now ready for hearing.

The Court of Appeal's reasoning was that Fiona McCallum's interests in the litigation were closely aligned with those of her brother, and that it was appropriate for her to be heard on the appeal. The Court also found that the post-judgment amended statements of claim were relevant to the appeal, and that any concerns about further evidence that might be required from the respondents should be addressed by the panel hearing the appeal. The Court's decision to grant both applications was based on these considerations.

The final orders of the Court of Appeal were to grant Fiona McCallum's application to be joined as a respondent and to grant the application to adduce further evidence on appeal. The Court directed that Fiona McCallum's participation in the appeal would be defined by Ms Bruton QC's submission, which stated that her counsel would make brief submissions supplemental to those made by William Jr's counsel in support of the appeal, and in reply, from Fiona's perspective. The appeal was set down without delay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established