Morris v Templeton - [2000] NZCA 126

IN THE COURT OF APPEAL OF NEW ZEALAND

CA105/00

BETWEEN	C E MORRIS AND J M K MORRIS
Applicant

AND	R R TEMPLETON
Respondent

Coram:	Gault J Thomas J Blanchard J
Counsel:	W J Wright for Applicant M Perpick for Respondent
Judgment:	17 July 2000

JUDGMENT OF THE COURT

The applicant seeks leave pursuant to s67 of the Judicature Act 1908 to appeal a judgment of Chisholm J in the High Court at Christchurch on 14 December 1999, dismissing the applicant’s appeal from a judgment of the District Court. Leave to appeal to this Court was refused by Chisholm J on 7 February 2000. By agreement of the parties, this application has been determined on the basis of written submissions.

Background

The applicants are beneficiaries under their grandfather’s will. The respondent is one of two trustees of the grandfather’s estate. In 1998 the applicants brought proceedings in the District Court at Christchurch alleging (inter alia) that the respondent had breached his trust by investing in unauthorised securities. In a reserved judgment delivered on 8 May 1998. Somerville DCJ found in favour of the applicants, holding the respondent to be in breach of trust when he made the unauthorised investments.
But in a further reserved judgment delivered on 31 May 1998, the District Court Judge decided to exercise the discretion under s73 of the Trustee Act 1956 and wholly excused the respondent from personal liability for the losses suffered as a result of his breach of trust. The applicants appealed to the High Court against this exercise of discretion. In the High Court Chisholm J considered Somerville’s DCJ’s exercise of discretion, and could not see any error in the way it had been exercised.
After leave to appeal to this Court was declined by Chisholm J, the applicants applied to this Court under s67 of the Judicature Act 1908 for leave to appeal. It was then realised for the first time by counsel for the applicants (who had not appeared below) that there was a serious question over the jurisdiction of the District Court to hear applications under s73 of the Trustee Act. Leave to appeal is therefore sought on the ground that the District Court had no jurisdiction to grant relief under s73, and that decision is therefore a nullity.

Leave to appeal

The test for granting leave to appeal under s67 of the Judicature Act was stated by this Court in Waller v Hider [1998] 1 NZLR 412, 413:
The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal: Rutherford v Waite [1923] GLR 34; Cuff v Broadlands Finance Ltd [1987] 2 NZLR 343 at pp 346-347.
…
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been…

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 Morris v Templeton

Details

AGLC: Morris v Templeton [2000] NZCA 126
Case: [2000] NZCA 126
Decision Date: 17 July 2000

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an application for leave to appeal a decision of the High Court in Morris v Templeton. The applicants, beneficiaries under their grandfather's will, sought to appeal against a judgment of the District Court that had been upheld by the High Court. The applicants alleged that the respondent trustee had breached his trust by investing in unauthorised securities. The District Court found the respondent in breach of trust, but exercised its discretion to excuse him from personal liability for the losses. The High Court dismissed the applicants' appeal against this decision. The applicants sought leave to appeal to the Court of Appeal, arguing that the District Court had no jurisdiction to excuse the respondent from liability under section 73 of the Trustee Act 1956, rendering the decision a nullity.

The primary legal issue before the Court of Appeal was whether the District Court had jurisdiction to grant relief under section 73 of the Trustee Act. The Court considered the relevant statutory provisions and concluded that the Legislature had reserved the power to grant relief under section 73 to the High Court. The District Court's jurisdiction to hear claims for breach of trust does not extend to exercising powers reserved to the High Court by statute. Therefore, the District Court had no jurisdiction to excuse the respondent from liability under section 73. The Court rejected the respondent's arguments that the applicants had waived the jurisdiction point or that it was too late to raise it.

The Court granted leave to appeal and allowed the appeal, finding that the District Court's decision was a nullity due to lack of jurisdiction. The Court ordered that the matter be remitted to the District Court to enter judgment for the applicants on the issue of liability, with the respondent to apply for relief in the High Court. The Court did not make an order for costs in the Court of Appeal.

Orders