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Merona Trustees Limited

Merona Trustees Limited

Case [2022] NZHC 724 8 April 2022

Legal Privilege

Admissibility of Evidence

Confidentiality

Discovery & Disclosure

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ORDER THAT THE LEGAL OPINIONS PROVIDED TO THE COURT ARE TO BE SEALED AND ARE NOT TO BE INSPECTED BY ANY PERSON WITHOUT ORDER OF A HIGH COURT JUDGE.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000345

[2022] NZHC 724

UNDER Part 18 of the High Court Rules 2016 and Section 133 Trusts Act 2019

IN THE MATTER

of the M & R Cooper No. 2 Trust application

BY

MERONA TRUSTEES LIMITED and

HAMISH PATRICK BENNETT as trustees of the M & R COOPER NO. 2 TRUST

Hearing: On the papers

Counsel:

A S Butler and K H Lawrence for Plaintiffs

J V Ormsby for Raymond Moody (party directed to be served)

Judgment:

8 April 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 8 April 2022 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE MERONA TRUSTEES LTD [2022] NZHC 724 [8 April 2022]

[1] The plaintiffs are the trustees of the M & R Cooper No. 2 Trust (the Trust). They have brought this proceeding for directions under s 133 of the Trusts Act 2019 as to the correct interpretation of clauses of the trust deed defining the class of discretionary and final beneficiaries.

[2] Counsel for the plaintiffs and counsel for Raymond Moody (a person directed to be served) disagree as to the extent to which the plaintiffs are required to disclose certain legal opinions and whether redactions to those opinions are permitted.

[3] Counsel have filed memoranda of submissions and the Court has been provided with the unredacted legal opinions. The parties ask the Court to resolve the disagreement and seek a ruling on the papers.

Background

[4] The Trust was established by deed dated 27 April 2002. Mervyn Cooper (Mervyn) and his wife, Sylvia Cooper (Rona), were the settlors of the Trust.

[5] Mervyn and Rona had two children together. Rona also had two children from a previous marriage, namely Robert Cooper (Robert) and Raymond Moody (Raymond). Robert was raised by Mervyn and Rona. Raymond was raised by extended family from a young age.

[6] Mervyn and Rona have now died. Robert has also died, leaving a wife, children and grandchildren. Raymond is alive and married with two children.

[7] One of the matters that will be decided in this proceeding is whether Raymond is a beneficiary of the Trust.

[8]Clause 1 of the trust deed provides as follows:

DEFINITIONS

In this Deed the following terms where the context admits shall have the following meanings:

(a)“child, children and issue” shall include children by adoption as well as natural born children.

(b)“the Discretionary Beneficiaries” shall mean:

(i)the Settlors, the said Mervyn Nathaniel Cooper and Sylvia Rona Lorraine Cooper or either of them;

(ii)any of the children of the Settlors;

(iii)any child or children of whom either or both of the Settlors may have been appointed guardian;

(iv)any grandchild of the Settlors;

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 Merona Trustees Limited

Details

AGLC: Merona Trustees Limited [2022] NZHC 724
Case: [2022] NZHC 724
Decision Date: 8 April 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Merona Trustees Limited, trustees of the M & R Cooper No. 2 Trust, brought an application for directions under section 133 of the Trusts Act 2019 to determine the correct interpretation of clauses in the trust deed defining the class of discretionary and final beneficiaries. The primary issue in the case was whether Raymond Moody, a potential beneficiary, was entitled to receive certain legal opinions provided to the plaintiffs, the trustees, and if so, to what extent those opinions could be redacted.

The plaintiffs argued that Raymond, as a potential beneficiary, had no entitlement to disclosure of trust information until his status as a beneficiary was confirmed by the Court. They submitted that only legal advice directly relevant to the determination of the proceeding should be disclosed, and that other material was not relevant or required to understand the passages in the legal opinions that had been disclosed. They further contended that legal advice privilege applied to the legal opinions and that the plaintiffs were not required to disclose the entirety of the opinions.

Raymond, on the other hand, asserted that under the usual rules of discovery, a trustee involved in litigation must discover relevant documents to the other party, whether or not the other party is a beneficiary, unless the documents are privileged. He argued that the appropriate remedy in such circumstances was to impose suitable confidentiality restraints, rather than allowing the plaintiffs to selectively disclose portions of the legal opinions.

The Court found that Raymond's status as a beneficiary had not been established, and his entitlement to trust information must be limited to material relevant to the subject matter of the proceeding. The Court also found that the plaintiffs were ordinarily entitled to assert legal advice privilege in respect of the legal opinions, but the issue was to what extent the privilege had been waived.

The Court held that the disclosure made by the plaintiffs was inconsistent with the continuation of the claim to confidentiality over other parts of the legal opinions. The Court ordered the plaintiffs to provide further disclosure of the legal opinions as specified in the judgment, and that the legal opinions provided to the Court for consideration were to be sealed and not inspected by any person without order of a High Court Judge. No orders were made in respect of costs between the parties.

Orders