Public Trust v Kain - [2020] NZHC 1386

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-40

[2020] NZHC 1386

UNDER the Trustee Act 1956

IN THE MATTER

of an application by the trustee for directions under s 66 of the Trustee Act 1956

BETWEEN

PUBLIC TRUST

Plaintiff

AND

GEORGINA KAIN AND OTHERS [as per

attached Schedule] First Defendants

AND

MARNIE COUPIE FORCER KAIN AND OTHERS

Second Defendants

AND

WILLIAM ALEXANDER SAVIER COUPER

Interested Party [Deceased, formerly an Interested Party]

Hearing: 8 June 2020

Appearances:

B D Gray QC for Plaintiff

K P Sullivan and J D Haig for the First Four Named First Defendants
M J Wallace for the Sixth to Eighteenth Named First Defendant and for the First to Thirteenth Named Second Defendants

A V Foote for the Fifth Named First Defendant (Mary Hutton) J F Anderson QC for the Nineteenth to Twenty First and Fourteenth to Sixteenth Named Second Defendants

Judgment:

19 June 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 19 June 2020 at 3.00 pm
pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 19 June 2020

PUBLIC TRUST v KAIN & ORS [2020] NZHC 1386 [19 June 2020]

SCHEDULE OF PARTIES

CIV-2018-409-40

GEORGINA KAIN, GEORGE CHARLES KAIN, GEORGE HARRY COUPER KAIN, MARY HUTTON, MARNIE COUPE FORCER KAIN, JACK KAIN, MOLLY KAIN, RACHEL KAIN, STANLEY KAIN, WOLSLEY KAIN, GEORGE KAIN,

ASTA KAIN, MADELINE KAIN, GEORGE KAIN, MICHAEL KAIN, RUPBERT KAIN, SAMUEL KAIN, GEORGIA HUMPHREYS, CONSTANCE HUTTON,

HARRIET HUTTON
First Defendants

MARNIE COUPIE FORCER KAIN, JACK KAIN, MOLLY KAIN, RACHEL

KAIN, STANLEY KAIN, WOLSLEY KAIN, GEORGE KAIN, ASTA KAIN,

MADELINE KAIN, GEORGE KAIN, MICHAEL KAIN, RUPERT KAIN, SAMUEL KAIN, GEORGIA HUMPHREYS, CONSTANCE HUTTON, HARRIET

HUTTON, DAVID WHYDE,

KIRSTY MARGUERITE COUPLER MASTERSON and ELIZABETH DIANE COUPER FRENDIN

Second Defendants

WILLIAM ALEXANDER XAVIER COUPER

Interested Party [Deceased, formerly an Interested Party]

[1] This application arises from an application by Public Trust for directions under s 66 of the Trustee Act 1956 (the Act) in respect of the Waitaha Trust and Middle Road Block Trust. The Waitaha Trust and the Middle Road Block Trust are part of a larger group of trusts/estates and referred to as the “Couper-Kain Group”.

[2] The background to the proceeding is referred to in an earlier judgment (the Discovery Judgment).1 In the Discovery Judgment, I declined the First Four Named First Defendants’ (the Kains) application for discovery and that judgment should be read in conjunction with the present one. I say that as the Discovery Judgment confirms the limited scope of Public Trust’s substantive application. Because the scope of the proceeding is the starting point to consider the applications, it is necessary to briefly summarise what was said in the Discovery Judgment in that regard and to record Mr Gray QC’s (counsel for Public Trust) confirmation of that scope.

[3] In the Discovery Judgment, Mr Gray confirmed that Public Trust was not seeking substantial factual guidance on distribution, only limited to guidance as to questions of…

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 Public Trust v Kain

Details

AGLC: Public Trust v Kain [2020] NZHC 1386
Case: [2020] NZHC 1386
Decision Date: 19 June 2020

CaseChat Overview and Summary

This application by Public Trust for directions under section 66 of the Trustee Act 1956 (the Act) in respect of the Waitaha Trust and Middle Road Block Trust, referred to as the “Couper-Kain Group”, was heard in the High Court at Christchurch. The Kains brought applications calling for further and better particulars of the statement of claim in respect of discovery and seeking an order that an independent software expert attempt to recover records from the Public Trust computer system. The Kains also sought a direction that Public Trust answer positive allegations raised in the amended statement of defence, which was withdrawn. The purpose of the application was to provide a “secure legal foundation” from which Public Trust could then go on to consider what it should do with the trusts, which are the subject of this proceeding. The relief sought was the directions in the statement of claim. The issues raised in the directions sought were purely legal and no factual findings were required. The Kains asked for 14 paragraphs of the statement of claim to be particularised. Particulars were provided in respect of three paragraphs. The remaining 11 paragraphs were not relevant to the questions of law upon which the directions were sought. The application for particulars was dismissed. The application for variation of discovery order related to memoranda of wishes held by the parties. The Kains sought documents which they say were intended to ensure that the memoranda of wishes are not looked at in a vacuum. They sought documents relating to how the memoranda of wishes were conveyed by the settlor. The court allowed the application in respect of categories 3-7 and dismissed the application in respect of category 1, which was deferred for further submissions. The application for an independent report was dismissed, but with the direction that Public Trust is to address, by further affidavit, recovering the missing email attachments from Public Trust employee recipients of the emails and in relation to the query about metadata. Costs were reserved.

Orders