Public Trust v Kain - [2020] NZHC 448

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-40

[2020] NZHC 448

UNDER the Trustee Act 1956 and Part 18 of the High Court Rules 2016

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

First Defendants

AND

MARNIE COUPIE FORCER KAIN AND OTHERS

Second Defendants

AND

WILLIAM ALEXANDER XAVIER COUPER

Interested Party

Hearing: On the papers

Counsel:

B D Gray QC and A E Ferguson for Plaintiff (Public Trust)

J Moss for First to Fourth Named First Defendants (the Kain Defendants)

T C Weston QC and A V Foote for Fifth Named First Defendant (Mary Hutton)
J C Anderson QC for Nineteenth to Twenty First Named First Defendants and Fourteenth to Sixteenth Named Second Defendants (Georgia Humphrey, Constance Hutton and Harriet Hutton)

A R Galbraith QC for Interested Party

M J Wallace for Sixth to Eighteenth First Defendants and First to Thirteenth Named Second Defendants

Judgment:

10 March 2020

PUBLIC TRUST v KAIN & OTHERS [2020] NZHC 448 [10 March 2020]

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 10 March 2020 at 3.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 10 March 2020

[1] From the commencement of this proceeding in which the Public Trust seeks directions, the settlor of the Trust, Mr W A X Couper, was represented as an interested party. It is common ground that no order giving Mr Couper that status was made but he has been represented by senior counsel throughout this proceeding.

[2] Mr Couper has died, and his executors have asked for what amounts to a new parties’ order seeking that they be substituted for Mr Couper, that is that they have status as interested parties in Mr Couper’s place. A separate issue is raised in respect of Mr Couper’s costs, both in the past and for the future, assuming his executors become parties.

Background to Mr Couper’s involvement

[3] In the plaintiff’s memorandum concerning directions as to service dated 20 December 2017, it said the following:

Public Trust submits that it is not necessary to serve Tom Couper, as the settlor of the trust, because he has no ongoing entitlement to the trust assets. However, if disclosure of his wishes as settlor is sought, it may be appropriate to join him as an interested party.

[4] Mr Fowler QC, then counsel for Mr Couper, in a memorandum accepted that Mr Couper did not have an ongoing entitlement to the Trust assets but submitted that he nonetheless had an interest as Settlor and in some of the issues to be determined in the proposed application as the questions related to Mr Couper’s memoranda of wishes. The submission was made that Mr Couper had a legitimate interest in how his historic memoranda of wishes were to be treated and he wished to be identified as a…

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 448
Case: [2020] NZHC 448
Decision Date: 10 March 2020

CaseChat Overview and Summary

This case involved an application by the Public Trust for directions under section 66 of the Trustee Act 1956, concerning the administration of a trust. The parties involved were the Public Trust, Georgina Kain and others as the first defendants, Marnie Coupie Forcer Kain and others as the second defendants, and William Alexander Xavier Couper as an interested party. The dispute centred around the settlor of the trust, Mr. Couper, who had been represented in the proceedings as an interested party but had died before the final judgment. His executors sought to be substituted as parties to the proceedings and questioned the appropriateness of his past and future costs.

The primary legal issues the court needed to address were whether Mr. Couper's executors could be joined as parties to the proceedings and, if so, what the implications would be for the costs incurred by Mr. Couper during the proceedings. The court also needed to consider the relevance of Mr. Couper's memoranda of wishes to the legal issues being determined. The court was required to apply the principles of joinder of parties as set out in Rule 4.56 of the High Court Rules 2016, which allows a party to be joined if their presence may be necessary to adjudicate on and settle all questions involved in the proceeding.

The court reasoned that the proceeding primarily involved the determination of legal issues, not the administration of Mr. Couper's estate. The court noted that Mr. Couper had no ongoing entitlement to the trust assets and that the relevant information needed for the proceeding was already available in the form of his memoranda of wishes. The court also highlighted that the executors were already represented in their personal capacities, and that joining the executors would unfairly benefit one side of the family and create an impression of partiality. The court concluded that it was not necessary to join the executors of Mr. Couper’s estate as their involvement would not assist the court in determining the legal questions raised in the application for directions.

The court declined to join Mr. Couper’s executors as parties to the proceeding, finding that their involvement was not necessary to address the legal issues at hand. The court also noted that the executors could still bring any relevant legal issues to the court's attention through their own counsel if necessary. The court further determined that the executors' views on the memoranda of wishes did not differ from those held by Mr. Couper, reinforcing the decision not to join them as parties. The final orders were made accordingly.

Orders