Naresh v McCluskie - [2009] NZCA 328

IN THE COURT OF APPEAL OF NEW ZEALAND
CA766/2008
[2009] NZCA 328
BETWEENTULSI RAM NARESH

Appellant

ANDGORDON EDWARD MCCLUSKIE

Respondent

Hearing:21 July 2009

Court:William Young P, Randerson and Asher JJ
Counsel:Appellant in person

A R Gilchrist for Respondent

Judgment:28 July 2009 at 12 noon

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant is ordered to pay the reasonable costs of the respondent in this Court on an indemnity basis, such costs to be paid by the appellant from the assets of the Gordon and Hansa Family Trust.
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REASONS OF THE COURT
(Given by Randerson J)

Introduction
[1]       The appellant Mr Naresh appeals against his removal as a trustee of the Gordon & Hansa Family Trust. The order was made by Courtney J on 14 November 2008 under s 51 Trustee Act 1956: HC AK CIV-2007-404-006152. The Judge also made an order appointing the Public Trust as sole trustee and certain ancillary orders.
[2]       By a further judgment issued on 12 December 2008, the Judge ordered that the respondent, Mr Gordon McCluskie, receive indemnity costs of $77,130.05 out of the Trust.
[3]       Mr Naresh now appeals against all the orders made. The grounds of appeal as set out in his amended notice of appeal dated 30 January 2009 are:
(a)The Court did not have jurisdiction to commence the trial or to appoint a replacement litigation guardian for the respondent where the originally appointed litigation guardian did not appear at the hearing.

The Judge erred in accepting into evidence the unsworn testimony of the original litigation guardian.
The Judge erred in finding it was necessary or expedient to remove the appellant as a trustee.
A settlement between the parties was reached prior to trial and, in those circumstances, the respondent was precluded from proceeding with his original application under s 51 and could only seek leave to enforce the settlement.
The Court erred in awarding indemnity costs and disbursements.

Background
[4] The background to this litigation reveals a most unhappy state of affairs. The key figures are Mr Gordon McCluskie, his late wife Hansa McCluskie and her brother Mr Tulsi Naresh. For convenience, we will refer to them as Gordon, Hansa and Tulsi.
[5] Gordon and Hansa were married in 1981. For most of their marriage they lived in a property at 11 John Street, Ponsonby which had been registered in Hansa’s name from a date in 1978 prior to their marriage. Tulsi claims to have contributed to the purchase price of this property. In 2003, Hansa settled the Gordon & Hansa Family Trust and the property at John Street was transferred into the names of the trustees. Tulsi accepts that the formation of the trust was his idea. All three, Gordon, Hansa and Tulsi were appointed as trustees. The transaction was effected in the following manner:
(a)Hansa and Gordon signed an agreement under the Property (Relationships) Act 1976 in which they agreed that the John Street property be divided equally between themselves as tenants in common. Gordon…

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 Naresh v McCluskie

Details

AGLC: Naresh v McCluskie [2009] NZCA 328
Case: [2009] NZCA 328
Decision Date: 28 July 2009

CaseChat Overview and Summary

The Court of Appeal heard an appeal brought by Tulsi Ram Naresh against the removal of his position as a trustee of the Gordon and Hansa Family Trust. The appeal was dismissed, and Naresh was ordered to pay the costs of the respondent on an indemnity basis, from the assets of the trust. The appeal arose from a decision made by Courtney J under s 51 Trustee Act 1956, to remove Naresh as a trustee of the family trust. Courtney J also made an order appointing the Public Trust as sole trustee, and certain ancillary orders. Naresh appealed against all the orders made on several grounds, including that the court did not have jurisdiction to commence the trial or appoint a replacement litigation guardian for the respondent, and that the judge erred in finding it was necessary or expedient to remove him as a trustee. The Court of Appeal dismissed the appeal and ordered Naresh to pay the costs of the respondent on an indemnity basis, from the assets of the Gordon and Hansa Family Trust. The Court found that the appeal was wholly without merit and that the Judge's decision to remove Naresh as a trustee was entirely appropriate, indeed inevitable.

Orders