McLaughlin v McLaughlin - [2022] NZHC 1841

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-442-52

[2022] NZHC 1841

BETWEEN MARK JAMES McLAUGHLIN and ANDREW ASHLEY McLAUGHLIN (as
beneficiaries of the Ashley Trust) Plaintiffs

AND

JOHN DAVID MANUEL McLAUGHLIN

(as trustee of the Ashley Trust) First Defendant

AND

GLASGOW HARLEY TRUSTEE LIMITED

Second Defendant

AND

BRETT McLAUGHLIN

Interested Party

Judgment: 28 July 2022

COSTS JUDGMENT OF GENDALL J

[1]This judgement relates to issues of costs concerning this proceeding.

[2] Following a lengthy trial in this proceeding extending to nearly three weeks of hearing time and involving no less than seven memoranda filed by counsel thereafter, on 9 November 2021 I issued a lengthy judgment in this proceeding which totalled some 434 paragraphs.

McLAUGHLIN v McLAUGHLIN [2022] NZHC 1841 [28 July 2022]

[3] In that judgment, I noted counsel’s request that costs be reserved and at paragraph [431] I stated specifically:

[431] Counsel for the parties are urged to liaise with a view to endeavouring to resolve between themselves all issues as to costs. Failing this being achieved, then the parties may file (sequentially) memoranda of submissions as to costs and, in the absence of either party indicating they wish to be heard on that question, I will decide the issue of costs based upon the memoranda filed and all the other material which has been provided relating to this proceeding.

[4] Counsel for the parties have now filed a significant number of memoranda here. These indicate that they have been unable to resolve the question of costs between themselves and they seek now that this issue is to be determined by the Court.

[5] In addition, counsel for the present trustees of the Ashley Trust (those trustees not being a party to this proceeding) have filed in this court a memorandum dated 19 May 2022 seeking orders to add the trustees as interested parties for the purposes of this costs consideration. They have also made certain comments concerning costs issues.

[6] The addition of the present Ashley trustees as interested parties to this proceeding for costs purposes is not opposed by any party here and it is appropriate in my view. An order is now made adding those trustees as interested parties here.

[7] Turning now to the overall outcome in this proceeding as outlined in my 9 November 2021 judgment, it was the defendants who were largely the successful parties here. The major claims by the plaintiffs here essentially have failed. This is notwithstanding the fact that late in the piece at the conclusion of all evidence at the hearing in this proceeding the first defendant, John David Manuel McLaughlin (John) agreed to retire as a trustee of the Ashley Trust as the plaintiffs, his brothers (Mark and Andrew) had sought in their first cause of action. The grounds for seeking John’s removal relating to alleged misconduct on his part in his role as a trustee generally did not succeed, however, and so far as the plaintiffs’…

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 McLaughlin v McLaughlin

Details

AGLC: McLaughlin v McLaughlin [2022] NZHC 1841
Case: [2022] NZHC 1841
Decision Date: 28 July 2022

CaseChat Overview and Summary

The High Court of New Zealand considered costs in the case of McLaughlin v McLaughlin. The plaintiffs, Mark James McLaughlin and Andrew Ashley McLaughlin, as beneficiaries of the Ashley Trust, sought the removal of their brother, John David Manuel McLaughlin, as a trustee of the trust. They also alleged breaches of duty by John and the second defendant, Glasgow Harley Trustee Limited (GHTL). The proceedings were lengthy and involved significant legal costs. The court issued a comprehensive judgment on 9 November 2021, which outlined the unsuccessful claims made by the plaintiffs. The defendants, John and GHTL, were largely successful in the proceedings.

The court addressed the issue of costs, noting that the plaintiffs had largely failed in their claims and, therefore, did not seek costs against the defendants. John, as the first defendant, sought costs from the plaintiffs and indemnification from the Ashley Trust for his shortfall in costs. GHTL sought costs from the plaintiffs and indemnification from the Ashley Trust for its additional costs. Brett McLaughlin, an interested party, also sought reimbursement for his costs from the Ashley Trust.

The court decided that John was entitled to 80% of the costs claimed against the plaintiffs, amounting to $365,154.24. The Ashley Trust was ordered to reimburse John $518,668.40 for his shortfall in costs, less the amount paid by the plaintiffs. GHTL was awarded $70,980.20 in costs against the plaintiffs, and leave was reserved for GHTL to seek further indemnification from the Ashley Trust. Brett was awarded $49,936.85 for his costs from the Ashley Trust.

The final orders included awarding costs to John and GHTL against the plaintiffs, reimbursing John and Brett from the Ashley Trust for their costs, and reserving leave for GHTL to seek further indemnification from the Ashley Trust. The court emphasised the importance of finality in the proceedings and considered the acrimonious nature of the family dispute in its cost calculations.

Orders