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Perrott-Hunt v Johnston

Perrott-Hunt v Johnston

Case [2018] NZHC 2678 17 October 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-2506

[2018] NZHC 2678

BETWEEN
MATTHEW NEIL PERROTT-HUNT

First Plaintiff

HUNT FT LIMITED and DEBRA CECILIA HOLTOM
Second Plaintiffs

AND

EDWARD ERROL JOHNSTON

First Defendant

EDWARD JOHNSTON & CO TRUSTEES LIMITED
Second Defendant

RONALD BRUCE JOHNSON JOHN KAHUKIWA and

LAWRENCE PONNIAH (sued as a firm of solicitors practising as CORBAN REVELL) Third Defendants

RONALD BRUCE JOHNSON (principal of CENTRAL PARK LEGAL LIMITED)
Fourth Defendant (removed)

ROSS JAMES FARRON and JAMES ROBERT ARTHUR NASH

Fifth Defendants

ROSS JAMES FARRON

Sixth Defendant Defendant

Hearing: 12 October 2018 at 10:30 am

Appearances:

D Turnbull for the Third Defendants No appearance for proposed third party Appearances of other parties excused

Judgment:

17 October 2018

PERROTT-HUNT v JOHNSTON (No.3) [2018] NZHC 2678 [17 October 2018]

JUDGMENT OF ASSOCIATE JUDGE R M BELL (No 3)

This judgment was delivered by me on 16 October 2018 at 4:55pm
pursuant to Rule 11.5 of the High Court Rules.

…………………………………
Deputy Registrar

Solicitors:
Grant S C K Sidnam, Epsom, Auckland, for Plaintiffs
Wotton Kearney (N J Francis/I R Shennan) for the Fourth Defendant Vodanovich Law Ltd (I M Vodanovich), Kumeu, Auckland
McElroys (A Challis), Auckland

Copy for:
R S Pidgeon, Barrister, Auckland, for Plaintiffs S Perese, Barrister, Auckland

[1] In August 2018 Corban Revell, the third defendants, applied for Maurice Hunt to be joined as a third party. He is one of the children of the late Mrs Vao Hunt, but was never a trustee of the Hunt Family Trust. In their draft statement of claim Corban Revell say that he was a de facto trustee and breached fiduciary duties he owed the beneficiaries. They say that they are entitled to look to him for equitable contribution if they are found liable.

[2] When the application was called, Associate Judge Smith noted that the draft pleading alleged that Mr Hunt was adjudicated bankrupt on 10 October 2013 and was discharged on 10 October 2016. He asked whether that discharge barred Corban Revell from suing Mr Hunt. This decision deals with that question.

[3] Leave to join Mr Hunt as a third party is required under r 4.4(2)(b) of the High Court Rules 2016 as more than 10 days have passed since Corban Revell filed its statement of defence. Mr Hunt has not been served yet. The other parties did not wish to be heard on the leave application.

Background

[4] Background can be found in my earlier decisions,1 but they deal with a different matter – the plaintiffs’ claims against Bruce Johnson after he left Corban Revell in 2011 and set up his own practice, Central Park Legal Ltd. In my first decision, I said:

Parties

[3] The first plaintiff is the administrator of the estate of the late Mrs Vao Hunt, who died on 31 May 2016. The second plaintiffs are the current trustees of the Hunt Family Trust. The original trustees were Mrs Hunt, her daughter Debra Holtom,…

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 Perrott-Hunt v Johnston

Details

AGLC: Perrott-Hunt v Johnston [2018] NZHC 2678
Case: [2018] NZHC 2678
Decision Date: 17 October 2018

CaseChat Overview and Summary

The matter before the Court was an application by Corban Revell, the third defendants, to join Maurice Hunt as a third party. Corban Revell sought to join Mr Hunt as a third party because he was one of the children of the late Mrs Vao Hunt, but was never a trustee of the Hunt Family Trust. Corban Revell alleged in their draft statement of claim that Mr Hunt was a de facto trustee and breached fiduciary duties he owed the beneficiaries. They sought to hold him liable for equitable contribution if they were found liable. The application for leave to join Mr Hunt as a third party was made under Rule 4.4(2)(b) of the High Court Rules 2016 as more than 10 days had passed since Corban Revell filed its statement of defence. The other parties did not wish to be heard on the leave application. The central issue before the Court was whether Mr Hunt’s discharge from bankruptcy barred Corban Revell from suing him for equitable contribution. The Court found that Mr Hunt’s discharge from bankruptcy did bar Corban Revell from suing him for equitable contribution unless they could establish that his liability for breach of fiduciary duty was incurred by fraud or fraudulent breach of trust. Corban Revell would need to allege actual dishonesty by Mr Hunt and prove it. The Court adjourned the hearing to give Corban Revell the opportunity to prepare a fresh pleading to see if they could meet the requirements for a pleading of fraud.

The Court made no orders for the joining of Mr Hunt as a third party. The hearing was adjourned to allow Corban Revell to prepare a fresh pleading.

Orders