Public Trust v Kain - [2019] NZHC 2789

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-40

[2019] NZHC 2789

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

IN THE MATTER OF

an application by the trustee for directions under section 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: 11 October 2019

Appearances:

B D Gray QC and A A Holden Plaintiff (Public Trust)

A R B Barker QC and J Moss for the First to Fourth Named First Defendants (the Kain defendants)
T C Weston QC and G J D Mander for Fifth Named First Defendant (Mary Hutton)
Appearance excused for Nineteenth to Twenty First Named First Defendants and Fourteenth to Sixteenth Named Second
Defendants
A R Galbraith QC for Interested Party
M J Wallace for Sixth to Eighteenth Named First Defendants and First to Thirteen Named Second Defendants (Grandchildren,

except for Mary Hutton)

Judgment:

31 October 2019

PUBLIC TRUST v KAIN AND OTHERS [2019] NZHC 2789 [31 October 2019].

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 31 October 2019 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 31 October 2019

[1] The first four named first defendants, referred to by the parties as the “Kain defendants”, have sought discovery orders against the other parties. Their application has been brought, in a sense, informally in that an interlocutory application for discovery has not been made, but it was clear from memoranda filed by the parties for a case management conference that the parties did not agree on the discovery to be given and hence what has been treated as an application for discovery was set down for hearing.

[2] Counsel for the plaintiff in their memorandum of 8 July 2019, set out the dispute as to the scope of discovery. The plaintiff considered that discovery ought to be limited to the various statements of wishes of the settlor of the two trusts in issue in this proceeding. The memorandum records the scope of discovery sought by the Kain defendants at that time. Additional documents are sought in the submissions filed in support of the application when compared to the position recorded in the 8 July 2019 memorandum, although those resisting discovery did not suggest anything turned on that.

[3] The documents sought by the Kain defendants are set out in the submissions filed in support of the present application as follows:

Deed of Equality/principle of equality

6.1Documents that relate to the treatment of the Deed of Equality or the principle of equality in the High Court Judgment including all relevant pleadings, applications, evidence and submissions;

6.2Documents that relate to any consideration of the Deed of Equality or the principle of equality by the trustees of trusts within the Couper-Kain trust group;

6.3Documents that describe any distribution made…

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 [2019] NZHC 2789
Case: [2019] NZHC 2789
Decision Date: 31 October 2019

CaseChat Overview and Summary

In Public Trust v Kain, the High Court was asked to consider an application for discovery made by Georgina Kain and others (the Kain defendants) against the Public Trust and other parties. The application for discovery was related to an ongoing dispute concerning the administration and distribution of two trusts, the Waitaha Trust and the Middle Road Block Trust. The Kain defendants sought extensive discovery of documents relating to the trusts' administration, the Deed of Equality, and various statements of wishes from the settlor, Tom Couper. The Public Trust opposed the application for discovery, arguing that the documents sought were irrelevant to the legal questions being asked and that the directions sought by the Public Trust did not require such extensive discovery.

The court considered the basic principles of discovery, which require the disclosure of documents directly relevant to the issues on the pleadings. The court noted that the directions sought by the Public Trust were focused on legal questions, such as whether the trustees were bound by the Deed of Equality, whether they should consider the principle of equality, and whether they could take into account the settlor's latest statement of wishes. The Kain defendants argued that these directions required factual context, but the court found that the directions did not seek to determine how the trustees should apply the principles in question, only whether certain considerations could be taken into account.

The court found that the directions sought were threshold questions that did not require the extensive discovery sought by the Kain defendants. The court dismissed the application for discovery, holding that the directions as framed did not require the discovery sought and that ordering such discovery would be to work backward from the desired utility of the directions rather than forward from the directions as written. The court also noted that the Public Trust had chosen the directions it believed would be useful to it, and it was not appropriate to expand the scope of the application based on the Kain defendants' criticisms of the directions. Costs were reserved, and the court made directions for the disclosure of certain statements of wishes held by the parties.

Orders