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Public Trust v Kain

Public Trust v Kain

Case [2018] NZHC 1547 27 June 2018

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000040

[2018] NZHC 1547

BETWEEN
PUBLIC TRUST

Applicant

AND

GEORGINA KAIN, GEORGE CHARLES KAIN, GEORGE HARRY COUPER KAIN,

…2/cont’d

Hearing: 20 June 2018

Appearances:

B Gray QC and A Holden for Applicant

T Weston QC and A V Foote for 5th named 1st Respondent (Mary Hutton)

R J B Fowler QC for Settlor (W A X Couper)

V Bruton QC for Georgia Humphreys, Constance & Harriet Hutton

R Raymond QC and J M McGuigan for 1st four-named 1st respondents (Harry, Michael, Charles and Georgina Kain) M J Wallace for children of 1st four named 1st respondents

Judgment:

27 June 2018

JUDGMENT OF VENNING J

This judgment was delivered by me on 27 June 2018 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel: Wilson Harle, Auckland/B Gray QC, Auckland
Izard Weston, Wellington/R Raymond QC/J M McGuigan, Christchurch Burley Attwood Law, Tauranga/M J Wallace, Christchurch
Duncan Cotterill, Christchurch/T Weston QC, Tai Tapu Vicki Ammundsen Trust Law Limited, Auckland
Succeed Legal Limited, Wellington/RJB Fowler QC, Wellington

PUBLIC TRUST v KAIN [2018] NZHC 1547 [27 June 2018]

GEORGE MICHAEL KAIN, MARY HUTTON, 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 and HARRIET HUTTON
First Respondents

ANDMARNIE 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 WHYTE, KIRSTY MARGUERITE COUPER
MASTERSON, and ELIZABETH DIANE COUPER FRENDIN
Second Respondents

Introduction

[1] This application is the latest piece of litigation in the long running dispute amongst members of the Kain family regarding the administration of family trusts.

[2]Public Trust applies for:

·leave to bring an application for directions in relation to the Waitaha Trust and the Middle Road Block Trust by way of originating application under Part 19 of the High Court Rules 2016;

·directions as to costs; and

·directions as to service.

[3] The focus is on the appropriate form of procedure to be used for Public Trust to pursue the directions it seeks.

Background

[4] In a substantive judgment delivered on 3 December 2004 Panckhurst J dealt with an application under the Trustee Act 1956 to remove trustees and various related orders.1 The background facts to the trusts, the relationships and disputes within the Kain family are fully set out in that judgment.

[5] In the course of the dispute some members of the family negotiated a deed of family arrangement in June 1997 (sometimes referred to as the “Deed of Equality”). The deed was between Tom and Charles Kain on the one hand and George Michael Kain, George Harry Couper Kain, Georgina Kain and Mary Hutton on the other. The parties agreed there had been unequal assistance provided from the…

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 [2018] NZHC 1547
Case: [2018] NZHC 1547
Decision Date: 27 June 2018

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application by the Public Trust, seeking leave to bring an application for directions in relation to the Waitaha Trust and the Middle Road Block Trust. The application was made by way of originating application under Part 19 of the High Court Rules 2016, but was opposed by the Kain family, who argued that the application should be brought under Part 18 of the rules instead. The court had to decide whether the application for directions should be brought under Part 19 of the rules, as proposed by the Public Trust, or under Part 18, as argued by the Kain family.

The court considered the arguments from both sides and concluded that the resolution of the directions would not be as straightforward as suggested by the Public Trust. The court found that for it to be able to consider the directions sought in a responsible way, further background or context would be necessary, which would be assisted by pleadings and limited discovery. The Part 18 procedure was still more efficient and confined than a general proceeding, and the concerns raised by Public Trust could be met by appropriate management of the proceedings. The court ultimately decided that Part 18 was the appropriate form as provided by the rules of Court.

As a result, the Public Trust's application for leave to bring the application for directions by way of originating application under Part 19 was dismissed. If Public Trust wished to pursue the application for directions, it was to be under Part 18, with a statement of claim to be filed and served by 20 July 2018. The costs of bringing the application and all appearances in support were to be met from the assets of the Trusts. The costs of all respondents incurred in responding to the application and presenting argument in relation to the directions sought were also to be paid from the assets of the Trusts, subject to certain conditions. The costs on the current application were to be fixed and paid at that stage, with Public Trust's reasonable costs to be paid from the assets of the Trusts.

Orders