IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2019-404-000937
[2020] NZHC 907
BETWEEN CARRICK ROBERT ZACHARY McCALLUM and CALLUM FRASER
McCALLUM as trustees of the McCALLUM FAMILY TRUST
First Applicants
AND
CARRICK ROBERT ZACHARY McCALLUM and CALLUM FRASER
McCALLUM as executors of the estate of WILLIAM FRASER McCALLUM SNR
Second Applicants
Hearing: 3 February 2020 Appearances:
K G Davenport QC & A M Cameron for the Applicants D A T Chambers QC for William Fraser McCallum Jnr
C V Walsh for Carrick Robert Zachary McCallum and Callum Fraser McCallum
A K Finnie as Litigation Guardian for Fiona McCallum M Selwyn as Property Manager for Fiona McCallum
Judgment:
5 May 2020
JUDGMENT OF GWYN J
[Application for Beddoe Order]
This judgment was delivered by me on 05 May 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
McCALLUM v McCALLUM [2020] NZHC 907 [5 May 2020]
Introduction
[1] The applicants, Carrick Robert Zachary McCallum (Rob) and Callum Fraser McCallum (Callum), are the trustees of the WF McCallum Trust (the Old Trust) and the McCallum Family Trust (the New Trust), settled by the late William Fraser McCallum Snr (Bill Snr). They are also the executors and trustees of Bill Snr’s estate (the Estate).
[2] William Fraser McCallum Jnr (William Jnr) has brought proceedings in CIV- 2019-404-00372 (the substantive proceedings) against the applicants in their capacities both as trustees and executors, as well as against them personally.
[3] Rob and Callum, in their personal capacities, are separately represented in the substantive proceedings and will defend William Jnr’s claims against them.
Application for Beddoe orders
[4] In the present proceeding the applicants seek what are known as Beddoe orders.1 In general terms a Beddoe order is an order that confirms that trustees’ reasonable costs in the litigation will be met from the assets of the trust or estate, regardless of the outcome of the litigation. In their capacity as trustees the applicants seek orders that it is reasonable for them, in their capacity as trustees, to defend the substantive proceedings and that, as trustees, they are entitled to be reimbursed out of the assets of the Trust for their reasonable legal costs in doing so.2 In their capacity as executors of the Estate they seek orders as to whether they should defend the proceedings seeking their removal as executors, and whether they are entitled to be reimbursed out of the assets of the estate for their reasonable legal costs of doing so.
1 Named after a case of that name – Re Beddoe [1893] 1 Ch 547 (CA). Other judgments commonly referred to are Re Buckton [1907] 2 Ch 406 (Ch) and Alsop Wilkinson v Neary [1995] 1 All ER 431 (Ch). New Zealand cases include Woodward v Smith [2014] NZHC 407, [2014] 3 NZLR 525; Fundación Pimjo AC v Aguilar & Aguilar Ltd [2015] NZHC 1402; and McLaughlin v McLaughlin [2018] NZHC 3198
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