McCallum v McCallum
[2020] NZCA 497
•15 October 2020 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA294/2020 [2020] NZCA 497 |
| BETWEEN | WILLIAM FRASER MCCALLUM JUNIOR |
| AND | CARRICK ROBERT ZACHARY MCCALLUM, CALLUM FRASER MCCALLUM AND MCCALLUM INDEPENDENT TRUSTEES LIMITED AS TRUSTEES OF THE MCCALLUM FAMILY TRUST |
| Hearing: | 12 October 2020 |
Court: | Kós P, Brown and Clifford JJ |
Counsel: | D A T Chambers QC for Appellant |
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.
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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
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