Perpetual Trust Limited v Cooke
[2025] NZHC 1601
•16 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-482
[2025] NZHC 1601
UNDER Part 18 of the High Court Rules IN THE MATTER OF
AND
The Trusts Act 2019
IN THE MATTER OF
The Estate of Naomai Joan Cooke
BETWEEN
PERPETUAL TRUST LIMITED as
Executor and Trustee of the Estate of Naomai Joan Cooke
First Applicant
AND
PERPETUAL TRUST LIMITED as Trustee
of funds held for Brian John Cooke Second Applicant
AND
BRIAN JOHN COOKE
Respondent
Hearing: 21 March 2025 Appearances:
Further submissions and evidence completed:
N R Williams and R W Belcher for the applicants The respondent in person
5 June 2025
Judgment:
16 June 2025
JUDGMENT (NO.2) OF POWELL J
[Miscellaneous Issues]
This judgment was delivered by me on 16 June 2025 at 4.00 pm.
Pursuant to R 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
PERPETUAL TRUST LIMITED v BRIAN JOHN COOKE [2025] NZHC 1601 [16 June 2025]
[1] On 5 July 2024 I issued my substantive judgment in these proceedings (the judgment).1 The judgment identified a range of matters requiring consequential decisions and set out a process to enable those to be determined.2
[2] No agreement was able to be reached between the parties on any of the outstanding matters identified. A further hearing ultimately took place in March 2025 and further submissions on the issues followed that hearing.
[3] This judgment addresses the matters outstanding as at the time of the hearing, specifically:
(a)Perpetual Guardian’s costs in relation to issues with the Red Beach property;3
(b)the arrangements for Mr Cooke to reoccupy the Wellsford property;4 and
(c)the overall reconciliation of the amounts held by Perpetual Guardian on behalf of Mrs Panhuis and Mr Cooke, including:
(i)accounting for the remaining 10 per cent of net sale proceeds for the Ōrewa property;5 and
(ii)detailing what costs Perpetual Guardian were entitled to deduct from the estate as a whole and/or Mr Cooke’s share of it.6
Perpetual Guardian’s costs in relation to issues with the Red Beach property
[4]Perpetual Guardian initially sought costs on the Red Beach issue totalling
$62,129.39. It was acknowledged that this figure did not represent the actual amounts spent in relation to the Red Beach issue. In the judgment I noted that while the
1 Perpetual Trust Ltd v Cooke [2024] NZHC 1779.
2 At [213]–[222].
3 At [147]–[153], [203]–[207], and [218].
4 At [202], [214], and [219]–[221].
5 At [213].
6 At [215]–[216].
reasonable and actual legal costs for Perpetual Guardian were appropriately payable out of Mr Cooke’s share of the estate:7
[218] … I am not satisfied that the current apportionment proposed by Perpetual Guardians fairly reflects the time and effort spent by either Perpetual Guardian or their lawyers on this issue which I consider clearly has been minor in the context of the issues between Perpetual Guardian and Mr Cooke. I therefore do not accept Perpetual Guardian’s current position that the costs attributable to the Red Beach property in any way represent one quarter or so of the total costs incurred by Perpetual Guardian across all three of the issues as has been suggested. Perpetual Guardian will have one month to calculate the actual costs incurred in relation to the Red Beach property, following which I will determine in due course whether the revised amounts claimed are reasonable.
[5] Following the judgment, Perpetual Guardian undertook a review of its costs on the Red Beach issue and concluded that three invoices could be deleted in their entirety, as well as partial deductions with regard to of a number of other invoices. The amended claim came to $48,975.37, which Perpetual Guardian submitted was reasonable, noting in particular:
The initial steps undertaken by Perpetual Guardian, set out in the attached chronology, were taken in order to try and avoid the need for High Court proceedings;
Mr Cooke unreasonably refused and/or failed to transfer the funds, meaning issuing High Court proceedings was the only option available to the trustee; and
The steps that followed issuing the proceedings were a necessary consequence of the course of the proceeding.
[6] Moreover, Perpetual Guardian submitted that 2B costs in relation to the Red Beach issue would amount to $27,724 based on a stand-alone proceeding and a one-day fixture.
[7] I record Mr Belcher had no specific submissions on this issue at the hearing. I discussed the issue with Mr Belcher on behalf of Perpetual Guardian at the hearing on the basis that some costs are clearly payable, and it was reasonable for the Red Beach issues to be addressed with the other claims raised in the proceedings. I considered, based on the submission that the original amount sought was one-third of the total
7 At [218].
legal costs of Perpetual Guardian across all three issues, that the amended amounts sought by Perpetual Guardian remains too high and that a figure of one fifth may be more appropriate.
[8] Mr Belcher agreed to take further instructions and filed a further memorandum following the hearing. He confirmed that the while the figure of $62,129.39 was not in fact one third of the total costs incurred,8 Perpetual Guardian was prepared to proceed on the basis that it was, and that one fifth of that figure or $37,277.63 was appropriate in respect of the Red Beach issue.
Discussion—costs on the Red Beach issue
[9] Having considered the additional submissions filed, I consider the amount now sought to be appropriate. It is clear the Red Beach issue was exceptionally discrete within the context of overall pleadings. Unlike the other matters, the Red Beach issue did not require any significant input by Perpetual Guardian or their lawyers, either in relation to the proceedings or in dealings with Mr Cooke. The lack of emphasis is apparent from the judgment as well as the invoices provided by Perpetual Guardian’s solicitors, which clearly focus on more substantive issues arising in the course of proceedings.
[10] I am conscious that an accurate apportionment is impossible at this juncture. Applying my discretion in terms of r 14.1 of the High Court Rules 2016, and with particular regard to the principles set out in r 14.2(1), I conclude the figure now sought is appropriate, together with one-third of the disbursements incurred. I therefore fix the costs of Perpetual Guardian in relation to the Red Beach issue at $37,277.63.
Arrangements for Mr Cooke to reoccupy the Wellsford property
[11]In the judgment I concluded:9
… there is no reason [Mr Cooke] should not be permitted to return to the Wellsford Property, albeit on conditions appropriate to observe the fact that both Mr Cooke and Perpetual Guardian have responsibilities towards the property under the Will.
8 Mr Belcher has advised that the total was in fact $372,102.31.
9 At [202].
[12]I accordingly directed:
[220] … it will be necessary for Perpetual Guardian and Mr Cooke to work together and reach agreement as to appropriate mechanisms to ensure the rates are paid and the property is insured and otherwise appropriately maintained. On the latter issue, I observe that while there was insufficient evidence to conclude that Mr Cooke was responsible for the methamphetamine contamination in the Wellsford property, it will be important to ensure the property remains uncontaminated. In consequence, the agreement between Perpetual Guardian and Mr Cooke must include appropriate provisions to enable regular inspections to take place and an agreed mechanism for those inspections, with appropriate sanctions in the event that the property is not maintained or access is denied to enable the inspection to take place.
[221] Perpetual Guardian and Mr Cooke will have six weeks following the date of this judgment to negotiate an appropriate agreement enabling reoccupation on conditions, with leave reserved to return to the Court in the event that this cannot be agreed. In the event that any specific conditions cannot be agreed, I will determine the issue following a further hearing to be convened.
[13] As it happened, Perpetual Guardian and Mr Cooke were unable to reach any agreement. In short, Mr Cooke does not accept there is any need for any agreement and he does not trust Perpetual Guardian. From his perspective, he should simply be allowed to re-occupy the Wellsford property, and he will ensure the rates are paid and the property maintained. In response, Perpetual Guardian has prepared a set of draft conditions which it considers appropriate should Mr Cooke reoccupy the Wellsford property (draft conditions), the contents of which formed the focus of discussion on this issue at the hearing. The draft conditions provided for regular inspections to assess the condition of the property, including carrying out testing for contaminants and restricting what works Mr Cooke could undertake. Following the hearing counsel for Perpetual Guardian took further instructions on several of the draft conditions and agreed a number of amendments. A copy of Perpetual Guardian’s draft conditions incorporating the amendments proposed post-hearing are annexed as Schedule 1 to this judgment.
[14] In order to fund the ongoing inspections and testing, Perpetual Guardian propose withholding $75,000 from the amounts payable to Mr Cooke.
[15] In addition to his general objections, Mr Cooke took issue with a number of the draft conditions as well as the quantum of fund proposed to be retained. He also expressed the view that an independent property manager may be appropriate.
Discussion—Arrangements for re-entry to the Wellsford property
[16] For the reasons set out at [202] of the judgment, as well as the wider history between Mr Cooke and Perpetual Guardian detailed throughout the judgment, as I discussed with Mr Cooke at the hearing I am satisfied it is important to have a clear set of conditions so that both Mr Cooke and Perpetual Guardian both know where they stand in relation to the Wellsford property.
[17] I am likewise satisfied that a number of the draft conditions proposed by Perpetual Guardian are, in the circumstances, likely to be unworkable. First, it is clear that a number of conditions are based on parts of the Residential Tenancies Act 1986 which do not appropriately reflect the fact the Mr Cooke has a more certain occupation than a tenant under that Act, and in consequence Perpetual Guardian does not stand in the same position as a conventional landlord. Likewise, a number of the draft conditions are ambiguous or otherwise ill defined, and there is no provision for a practical disputes resolution mechanism which I consider to be essential.
[18] Moreover, the draft conditions are underpinned by the requirement in Mrs Cooke’s will that Mr Cooke maintain the Wellsford property “in the same condition as it [was] at the date [Mrs Cooke died]”. This is problematic given it does not appear there is any record of what that condition might have been, and in light of the fact that there has been a number of supervening events since Mrs Cooke’s death, noting in particular that:
(a)the Wellsford property had been leased out for some time after the death of Mrs Cooke in March 2017 and it is not clear what condition it was in at the time;
(b)Perpetual Guardian did not inspect the Wellsford property after it was first appointed in 2019 and prior to Mr Cooke beginning occupation;
(c)the Wellsford property was the subject of methamphetamine decontamination work carried out at the direction of Perpetual Guardian in February 2022 and it is not clear in what condition the property was left at the end of that work, although Mr Cooke has stated that at the very least all carpets and curtains were removed; and
(d)in any event following Mr Cooke’s eviction in October 2021, the Wellsford property has remained vacant, and it is not clear what maintenance has been carried out since then.
[19] As a result, and without wishing to delay matters further, it seems to be in the interests of both parties to ascertain with accuracy the condition of the Wellsford Property before Mr Cooke regains possession. In addition, given the history of the matter to date, I agree with Mr Cooke it is entirely sensible that the management of the property be undertaken by an independent property manager rather than directly by employees of Perpetual Guardian.
[20] It follows that the first step is for the parties to identify a list of appropriate property managers in the Kaiwaka/Mangawhai/Wellsford/Warkworth area for joint appointment by Perpetual Guardian and Mr Cooke. If no agreement is possible, Perpetual Guardian is to confirm a list of the property managers in that area who are prepared to accept an appointment together with their details, and I will make the decision.
[21] Once the property manager has been appointed, a joint inspection is to take place with the property manager, representatives of Perpetual Guardian and Mr Cooke. A report is to be prepared by the property manager as to the current condition of the property which will provide a baseline for future maintenance obligations and assessments of the condition of the property. I leave open for the parties to reach agreement on bringing the property up to an agreed standard, and how this would be funded. In the absence of such an agreement, the condition of the property for the purposes of monitoring will be as determined in the property inspection report.
[22] After the property inspection report has been completed and is agreed by both Perpetual Guardian and Mr Cooke, Mr Cooke will be able to return to the Wellsford property pursuant to the amended set of conditions as set out in Schedule 2 to this judgment (conditions). Out of an abundance of caution, the parties are given a further 10 working days to identify any issues arising or matters that have been overlooked, and leave is also given for the parties to suggest an inexpensive and fast dispute resolution process in the event there is any dispute over decisions taken by the property manager to avoid any protracted disputes arising.
[23] I also confirm that I consider it appropriate for $75,000 to be set aside out of Mr Cooke’s share of the estate to pay for the costs associated with the management of the Wellsford property including the property manager and annual testing for contaminants. The sum is to be held in an appropriate interest-bearing account and Perpetual Guardian is to provide an annual summary of transactions and the account balance. Any amounts unused at his death will pass to the beneficiaries of his estate.
Reconciliation of amounts held by Perpetual Guardian on behalf of Mrs Panhuis and Mr Cooke
[24] As noted, Perpetual Guardian has prepared a full reconciliation in accordance with [217] of the judgment. The reconciliation could not, however, be finalised until the costs and disbursements Perpetual Guardian was entitled to in respect of the of the Red Beach issue had been determined. In addition, it was necessary to consider whether particular payments purportedly made on behalf of Mr Cooke, or otherwise attributable to his share of the estate, were correctly so attributed.
[25] Following a helpful discussion at the hearing, Perpetual Guardian provided an updated reconciliation confirming:
(a)The Red Beach costs figure is $37,277.63 as set out at [10] above.
(b)Payments to Wardill Pasley Law and Geoff Jenkin Barrister, originally included in the draft reconciliation were not properly attributable to Mr Cooke’s share of the estate, and have been removed.10
(c)Payments Mr Cooke accepted at the hearing that were properly made on behalf of Mr Cooke or otherwise attributable to his share of the estate have been confirmed being:
· Legal fees for Mr Cooke to Martelli McKegg Lawyers of
$19,225.40;
· Distribution to Mr Cooke on 28 April 2023 of $10,000;
· Rates paid by the estate while Mr Cooke was in occupation of the Ōrewa and/or Wellsford properties of $1,833.71
(d)Rental payments in respect of the Wellsford Property prior to Mrs Cooke’s death have been attributed to the estate and after to Mr Cooke.
(e)Minor changes to interest calculations have been made.
[26] Notwithstanding the changes made, Mr Cooke has by memorandum more broadly challenged the reconciliation. He claimed that Perpetual Guardian’s figures “are not transparent and do not add up” and produced his own set of figures.
[27] Having reviewed the final version of Perpetual Guardian’s reconciliation (final reconciliation) and Mr Cooke’s figures, I am unable to see any error with the final reconciliation. I therefore confirm the final reconciliation is an appropriate basis for payments to Mrs Panhuis and Mr Cooke.
Powell J
10 These invoices constituted the payment of Mrs Panhuis’s lawyers in the litigation that resulted in the removal of Mrs Panhuis and Mr Cooke as the executors and trustees of the estate of Mrs Cooke, and the appointment of Perpetual Guardian. In accordance with a judgment of Woolford J, those costs were properly paid out of the estate: Panhuis v Cooke [2019] NZHC 563, at [29(d)].
Schedule 1
Perpetual Guardian’s Proposed Conditions for Re-Occupation of the Wellsford Property
[1] Perpetual and/or its agents are entitled to enter the Wellsford Property to inspect it at any time between 8 am and 7 pm on a day notified in writing to Mr Cooke not less than 48 hours before the intended entry.
[2] Perpetual and/or its agents may enter the Wellsford Property at any time in the case of an emergency.
[3] Without limiting Perpetual’s right to assess the condition of the Property under the terms of the Will, for the avoidance of doubt, it is entitled to test for the presence of contaminants including taking samples and/or undertaking invasive testing. Any testing will occur annually.
[4] If upon inspection, Perpetual determines the Property is not adequately maintained, Perpetual will allow three weeks for any defects to be remedied – upon which a subsequent inspection will be conducted. If a timeframe of three weeks is unreasonable, Perpetual will agree to a reasonable timeframe for the work to be remedied before a subsequent inspection is conducted.
[5] Mr Cooke may not in any way disrupt or interfere with Perpetual and/or its agents when they enter the Wellsford Property or when conducting the inspection.
[6] Mr Cooke will ensure that any animals, including dogs, are restrained when the Perpetual and/or its agents enter the Wellsford Property.
[7]The cost of inspections will be met by the Estate.
[8] Mr Cooke may not undertake any works at the Wellford Property without the prior written approval of Perpetual. This includes painting and/or any other building work. Perpetual’s consent will not be unreasonably withheld.
[9] Mr Cooke may not possess, consume or in any way deal with methamphetamine at the Wellsford Property.
[10] Mr Cooke may not permit, knowingly or unknowingly, any other person to possess, consume, or in any way deal with methamphetamine at the Wellsford Property.
[11] Mr Cooke will complete any declarations or other documentation reasonably required for Perpetual to acquire appropriate insurance over the Wellsford Property.
[12] Mr Cooke must pay invoices for rates, insurance premiums, and all other usual outgoings, sent to him by Perpetual, within 21 days of the invoice being sent. If payment is not received within 21 days a default interest rate of 4 per cent per month will apply.
[13] All notices, including notice of inspection and notice of invoices, are to be sent to Mr Cooke by email. Notice by email is deemed to be given at the time the email was sent by Perpetual. Mr Cooke is solely responsible for notifying Perpetual of any change to his email address. Notification by email will not be defective because Mr Cooke has changed his email without notifying Perpetual.
[14] All other conditions of Mr Cooke’s occupation, set out in the terms of the Will, remain in force.
Schedule 2
Final conditions for re-occupation of the Wellsford Property
[1] The property manager is entitled to enter the Wellsford property to inspect it at any time between 9.30 am and 5.00 pm on a day, notified in writing to Mr Cooke, no less than 72 hours before the intended entry. The purpose of the inspections will be to:
(a)assess the condition of the property against the property inspection report; and
(b)undertake an annual test for the presence of contaminants, including taking samples and/or undertaking invasive testing if reasonable grounds exist that such are likely to be present.
[2] Mr Cooke may not in any way disrupt or interfere with the property manager when they enter the Wellsford Property or when conducting the inspection and/or testing. Mr Cooke will ensure that any animals, including dogs, are restrained when the property manager enters the property.
[3] Mr Cooke is responsible for maintaining the property to the level identified in the property inspection report at his expense. Mr Cooke is not to undertake the construction of any other permanent buildings or other structures at the Property without first obtaining the prior written approval of the property manager, following consultation with Perpetual Guardian. Such approval is not to be unreasonably withheld.
[4] If upon inspection the property manager determines the property is not being maintained to the level set out in the property inspection report, the property manager is to allow, following consultation with Mr Cooke, an appropriate time for any defects to be remedied, following which a subsequent inspection will be conducted.
[5] If upon subsequent inspection the property manager determines the property is still not maintained to the level set out in the property inspection report, the property
manager is to, following consultation with Mr Cooke, make arrangements for works to be undertaken to bring the property up to that level at Mr Cooke’s expense.
[6] The cost of the property manager and (including inspections and/or testing) is to be met out of a sum of $75,000 retained out of Mr Cooke’s share of the estate which is to be held by Perpetual Guardian on interest-bearing deposit.
[7] Mr Cooke may not possess, consume, store, or in any way deal with methamphetamine at the property or otherwise permit any other person to possess, consume, store, or otherwise deal with methamphetamine while at the property.
[8] Mr Cooke will complete any declarations or other documentation reasonably required for Perpetual Guardian to acquire appropriate insurance over the Property.
[9] Mr Cooke must pay invoices for rates, insurance premiums, and all other usual outgoings sent to him by Perpetual Guardian within 21 days of the invoice being sent.
[10] All notices, including notice of inspection and notice of invoices, are to be sent to Mr Cooke by email. Notice by email is deemed to be given at the time the email was sent by Perpetual or the property manager. Mr Cooke is solely responsible for notifying Perpetual Guardian and the property manager of any change to his email address. Notification by email will not be defective because Mr Cooke has changed his email without notifying Perpetual.
[11] All other conditions of Mr Cooke’s occupation, set out in the terms of the Will, remain in force.