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McCallum v McCallum

McCallum v McCallum

Case [2019] NZHC 1925 30 July 2019

Discovery & Disclosure

Trusts & Equity

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000372

[2019] NZHC 1925

UNDER Part 18 of the High Court Rules

BETWEEN

WILLIAM FRASER MCCALLUM JNR

Plaintiff

AND

CARRICK ROBERT ZACHARY MCCALLUM AND CALLUM FRASER

MCCALLUM as executors and trustees of the estate of WILLIAM FRASER MCCALLUM SNR

First Defendants

CARRICK ROBERT ZACHARY MCCALLUM AND CALLUM FRASER

MCCALLUM as trustees of the MCCALLUM FAMILY TRUST

Second Defendants

CARRICK ROBERT ZACHARY MCCALLUM
Third Defendant

CALLUM FRASER MCCALLUM

Fourth Defendant Continued over page

Hearing: 30 July 2019

Appearances:

A H H Choi for the Plaintiff

K G Davenport QC and A M Cameron for First and Second Defendants/First and Second Applicants
S M Lowery on instructions from C Walsh for Third and Fourth Defendants
A K Finnie as Litigant Guardian for Fiona McCallum

Judgment:

30 July 2019

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

MCCALLUM v MCCALLUM [2019] NZHC 1925 [30 July 2019]

CIV-2019-404-000937

UNDER Part 19 of the High Court Rules

IN THE MATTER of an application for a Beddoe order

IN THE MATTER              of an application by CARRICK ROBERT
ZACHARY       MCCALLUM       AND CALLUM   FRASER   MCCALLUM as
trustees of the MCCALLUM FAMILY TRUST
First Applicants
CARRICK      ROBERT       ZACHARY MCCALLUM AND CALLUM FRASER
MCCALLUM as executors of the estate of WILLIAM FRASER MCCALLUM SNR
Second Applicants

Solicitors:
Kelly Flavell Law, Mellons Bay Asco Legal Ltd, Howick
Davenports Harbour Lawyers, Albany

Introduction

[1] On 4 September 2019, there will be a hearing on two matters. In CIV-2019- 404-372 the plaintiff will apply for a prospective costs order. In CIV-2019-404-937 the first and second defendants will apply for Beddoe directions.1 Ahead of that hearing the plaintiff applies for discovery. He seeks disclosure of six categories of documents:

(a)All invoices for legal fees and disbursement incurred by:

(i)the trustees of the McCallum Family Trust (second defendants and first applicants) (the New Trust) in relation to litigation or the prospect of litigation with William Fraser McCallum Jnr (plaintiff);

(ii)the executors of the estate of William Fraser McCallum Snr (first defendant and second applicants) (Bill snr’s estate) in relation to litigation or the prospect of litigation with William Fraser McCallum Jnr (plaintiff);

(iii)Carrick Robert Zachary McCallum (third defendant) and Callum Fraser McCallum (fourth defendant) in relation to litigation or the prospect of litigation with William Fraser McCallum Jnr (plaintiff) following the death of William Fraser McCallum Snr, and either;

a.incurred in their capacities as trustees of the W F McCallum Trust (old trust); or

b.incurred in their personal capacities but for which they may seek indemnity from the new trust or the father’s estate;

1 Re Beddoe, Downes & Cottam [1893] 1 Ch 547 (CA).

(b)All resolutions, correspondence, minutes of meetings and memoranda of the trustees and executors of the new trust, the father’s estate and the old trust relating to the provision of money to William Fraser McCallum Jnr to pay legal fees since 18 November 2016;

(c)All legal opinions and other written legal advice…

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 McCallum v McCallum

Details

AGLC: McCallum v McCallum [2019] NZHC 1925
Case: [2019] NZHC 1925
Decision Date: 30 July 2019

CaseChat Overview and Summary

The High Court of New Zealand heard an application for discovery in the case of McCallum v McCallum. The plaintiff, William Fraser McCallum Jnr, sought disclosure of six categories of documents related to the estate planning of his late father, William Fraser McCallum Snr, and the administration of trusts established by his father. The defendants, Carrick Robert Zachary McCallum and Callum Fraser McCallum, as trustees of the McCallum Family Trust and executors of William Snr's estate, opposed the application. The court considered the application in light of the Beddoe order application and the prospective costs order application.

The court directed the disclosure of gross amounts of legal fees incurred by the trustees, while not requiring the disclosure of individual invoices. The court found that the trustees were not required to disclose resolutions, correspondence, minutes of meetings, and memoranda relating to the provision of money to William to pay legal fees, as the allegation of bad faith was not reasonably arguable. The court required the disclosure of an opinion obtained by the trustees in November 2017 relating to the resettlement of the Old Trust on the New Trust, with redactions allowed for litigation privilege. The court also required the disclosure of legal advice within the fourth category, relating to decisions as to provision or non-provision of funds to William for his legal fees, as litigation privilege did not apply in this context.

The court directed that the disclosure be completed by 13 August 2019 and invited counsel to confer on costs. The court reserved leave to seek directions if the plaintiff wished to challenge any redactions made to the documents already disclosed.

Orders