McCullum v McCullum - [2021] NZHC 2993

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-372

[2021] NZHC 2993

UNDER Part 18 of the High Court Rules

BETWEEN

WILLIAM FRASER McCALLUM JNR AND FIONA CATHERINE JANE McCALLUM

Plaintiffs

AND

CARRICK ROBERT ZACHARY McCALLUM AND CALLUM FRASER McCALLUM AS EXECUTORS AND

TRUSTEES OF THE ESTATE OF WILLIAM FRASER McCALLUM SNR

First Defendants

Cont:/

Hearing: 3 November 2021

Appearances:

D A T Chambers QC for the First-Named Plaintiff S L Robertson QC for Second-Named Plaintiff

A R Gilchrist for Third Plaintiff in CIV-2019-404-2013

A S Butler for First and Second Defendants and Sixth Defendants in CIV-2019-404-2013

A M Camerson for Third and Fourth Defendants S C I Jeffs for Fifth Defendants

Judgment:

5 November 2021

JUDGMENT OF PAUL DAVISON J

[Re Application to Recall Judgment]

This judgment was delivered by me on 5 November 2021 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

McCALLUM v McCALLUM [2021] NZHC 2993 [5 November 2021]

AND

Cont:/

CARRICK ROBERT ZACHARY McCALLUM AND CALLUM FRASER McCALLUM AND McCALLUM INDEPENDENT TRUSTEES LTD AS

TRUSTEES OF THE CALLUM FAMILY TRUST

Second Defendants

AND

CARRICK ROBERT ZACHARY McCALLUM

Third Defendant

AND
CALLUM FRASER McCALLUM

Fourth Defendant

AND

ANDREW ROBERT GILL, CALLUM FRASER McCALLUM AND JAN MAUREEN McCALLUM AS TRUSTEES OF THE CF & JM McCALLUM FAMILY TRUST

Fifth Defendants

Solicitors:
Kelly Flavell Law, Auckland BSA Law, Auckland McVeagh Fleming, Auckland

[1] On 12 August 2021 I delivered a judgment determining an application by the plaintiffs for further discovery and disclosure of documents held by the defendants as trustees and executors for which they claim privilege.1

[2] In a joint memorandum dated 13 August 2021 counsel for the defendants seek a recall of the judgment and make written submissions in support of their application.

[3] On the day the joint memorandum seeking recall was filed, the parties were participating in a mediation conference before Hon Rhys Harrison QC. The mediation had commenced on 12 August and continued through 13 August 2021. The mediation was successful and resulted in the parties reaching agreement to settle the substantive disputes between them, and they recorded the terms in a Deed of Settlement dated 13 August 2021. The Deed of Settlement expressly provides that the settlement was subject to the approval of the High Court.

[4]Clause 1.1 of the Deed of Settlement provides:

Full and final settlement

Subject to the approval of the High Court to the terms of this Settlement, this agreement is in full and final settlement of all or any rights, claims or demands that the Parties may have against another, and shall be in full and final satisfaction, release and discharge from all rights to property which any party might otherwise have or have had against another and the others’ estate whether under the Property (Relationships) Act 1976 (PRA), the Family Protection Act 1955 (FPA), Family Proceedings Act 1980 (FamP), Law Reform (Testamentary Promises) Act 1949 (TPA), Trusts Act 2019 or…

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 McCullum v McCullum

Details

AGLC: McCullum v McCullum [2021] NZHC 2993
Case: [2021] NZHC 2993
Decision Date: 5 November 2021

CaseChat Overview and Summary

The case of McCullum v McCullum involves a dispute between family members regarding the restructuring of family trusts and the handling of assets by trustees. The High Court of New Zealand was tasked with deciding an application by the defendants to recall a previous judgment that ordered further discovery and disclosure of documents held by the defendants. The defendants sought recall of specific sentences in the judgment which they argued reached conclusions on disputed allegations that should have been left for determination at trial. The plaintiffs argued that the terms of a settlement agreement, which was approved by the Court, precluded the defendants from pursuing their application for recall.

The Court held that the terms of the settlement agreement precluded the defendants from taking any further steps in the proceedings, including pursuing their application for recall. The Court also dismissed the application for recall on its merits, finding that the challenged sentences did not express a final determination of any issues in dispute and were supported by the information before the Court. The Court found that the inclusion of an "Exclusion of Beneficiaries" provision in the New Trust deed was relevant to the plaintiffs' application for further discovery and did not amount to a concluded finding of fact. The Court similarly found that the sentence in question did not express a conclusion on the reasons for seeking the removal of a trustee, but rather provided strong support for the plaintiffs' submission regarding those reasons.

The Court declined and dismissed the defendants' application for recall of the judgment. The plaintiffs, having succeeded in opposing the application, were entitled to an award of costs together with their reasonable disbursements. The Court directed the parties to file and serve joint costs memoranda and determined that the substantive judgment would not be published for 20 working days after the date of release of this judgment to prevent an appeal from being rendered nugatory.

Orders