Niven v Eron Holdings Ltd - [2022] NZHC 3344

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000053

[2022] NZHC 3344

BETWEEN
JOCELYN ANNE NIVEN

First Plaintiff/First Applicant

LYNETTE RUTH NIVEN
Second Plaintiff/Second Applicant

AND

ERON HOLDINGS LTD and RINGWOOD

TRUSTEES LTD as trustees of a trust known as the Hobson Trust Defendants/Respondents

Hearing: 24 November 2022

Appearances:

T Nelson for First Plaintiff R A Rose for Defendants

Judgment:

12 December 2022

JUDGMENT OF VENNING J PROSPECTIVE COSTS ORDER

This judgment was delivered by me on 12 December 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: DK Law Ltd, Auckland
TGT Legal, Auckland

Counsel:R A Rose, Auckland T Nelson, Auckland

Copy to: Lynette Niven

NIVEN v ERON HOLDINGS LTD [2022] NZHC 3344 [12 December 2022]

Introduction

[1] Jocelyn Niven and Lynette Niven seek a prospective costs order (PCO) in their favour in relation to three questions they propose to seek answers on from the Court.1 They say the questions relate to issues concerning the administration of the Hobson Trust (the Trust). The application is opposed by the defendants, Eron Holdings Limited and Ringwood Trustees Limited, the current trustees of the Trust.

[2] Jocelyn and Lynette are two of the five children of the late Ronald (Ron) Niven and Euphemia Ruth Niven (Ruth Niven). The other three children are their brothers, David, Gary, and Michael. All are beneficiaries of the Trust as were Ronald and Ruth Niven. The other beneficiaries include the siblings’ spouses, their children, (and their spouses) and any charity.

The Hobson Trust

[3] The Trust was established on 28 March 1984. The named settlor was Euphemia McLeod Lambourne, Ruth’s mother. The original trustees were Ron and Gordon Watson. Mr Watson resigned in May 2003.

[4] Ron remained as a trustee and on or about 23 June 2010 he appointed Eron Holdings Limited, a company he incorporated for the purpose, as an additional trustee.

[5] Ron died on 10 April 2020. In his will he left each of the five children 20 of the 100 shares in Eron Holdings Limited. At present the shares are held in his estate by his executors. An independent trustee company, Ringwood Trustees Holdings Limited (of which Christopher Darlow is the sole director and shareholder) was appointed as second trustee in June 2021.

[6] During Ron’s life, and after Mr Watson’s resignation as trustee, from time to time Ron exercised a power of appointment to appoint advisory and other trustees to the Trust. At other times he failed to exercise the power and carried on the business of the Trust as sole trustee (despite the requirement for two trustees).

1 The particular order sought is a PCO entitling them, at the expense of the Trust, to apply to the Court for declarations as to the three questions.

[7]The Trust’s assets are worth somewhere in the region of $25 to $30 million.

The three questions

[8] Jocelyn and Lynette have identified three questions which…

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.

Keep reading for free

Create a free CaseChat account to read Niven v Eron Holdings Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 3344
Decision Date: 12 December 2022

CaseChat Overview and Summary

In Niven v Eron Holdings Ltd, Jocelyn and Lynette Niven sought a prospective costs order (PCO) to fund an application for declarations regarding three questions about the administration of the Hobson Trust. The defendants opposed the application. The first two questions related to whether certain documents had changed Ruth's status as a beneficiary of the Trust and whether Ruth was entitled to a certain loan. The third question concerned whether Lynette owed money to the Trust. The court found that the first two questions related to the administration of the Trust and would justify an application by the trustees. The third question was considered a self-interested claim by Lynette against the Trust. The court granted a PCO for the first two questions but dismissed the application for the third question. The applicants were to have two-thirds of their costs on the application paid from the Trust, and the defendants were to have their costs paid from the estate.

Orders