Simpson v Hubbard - [2012] NZHC 3603

ORDERS FOR SUPPRESSION UNTIL FURTHER ORDER OF THE COURT OF ALL INFORMATION RELATING TO THE PERSONAL FINANCIAL SITUATION OF MRS HUBBARD OR THE HUBBARD ESTATE

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2012-476-000144 [2012] NZHC 3603

IN THE MATTER OF THE CORPORATIONS (INVESTIGATION & MANAGEMENT) ACT 1989

AND IN THE MATTER OF AN APPLICATION BROUGHT BY RICHARD GRANT SIMPSON, TREVOR FRANCIS THORNTON AND GRAEME CARSON MCGLINN AS STATUTORY MANAGERS OF AORANGI
SECURITIES LIMITED (IN STATUTORY MANAGEMENT) (A DULY INCORPORATED COMPANY)
Applicants

ANDMARGARET JANE HUBBARD (RELEASED FROM STATUTORY MANAGEMENT) AS EXECUTRIX AND TRUSTEE OF THE ESTATE OF THE LATE ALLAN JAMES HUBBARD
First Respondent

ANDMARGARET JANE HUBBARD Second Respondent

ANDMARGARET JANE HUBBARD (RELEASED FROM STATUTORY MANAGEMENT) AS EXECUTRIX AND TRUSTEE IN THE ESTATE OF THE LATE ALLAN JAMES HUBBARD
AND AS TRUSTEE OF THE TE TUA CHARITABLE TRUST (IN STATUTORY MANAGEMENT)
Third Respondent

ANDANDREW JAMES MORRIS AND EDGAR GEORGE BRADLEY TRUSTEES OF THE TEMPLE BAR TRUST (IN STATUTORY

SIMPSON V HUBBARD HC TIM CIV-2012-476-000144 [21 December 2012]

MANAGEMENT) Fourth Respondent

ANDFORRESTERS NOMINEE COMPANY LIMITED (IN STATUTORY MANAGEMENT) (A DULY INCORPORATED COMPANY)
Fifth Respondent

Hearing: Dealt with on the papers

Judgment: 21 December 2012

JUDGMENT OF CHISHOLM J

[1] Although I delivered an oral judgment concerning various matters on

7 November 2012,[1] it was not possible to resolve all the matters that were before the Court at that time. Subsequently I held a telephone conference with counsel for the statutory managers and Mrs Hubbard[2] about the outstanding matters and further information has been provided.

[1] Simpson v Hubbard HC Timaru CIV-2012-476-000144, 7 November 2012.

[2] On 7 December 2012.

[2] This judgment resolves the outstanding pre-trial matters concerning this proceeding. The substantive hearing is scheduled to commence on 20 May 2013 and a week has been allocated.

Disbursements

[3] In the oral judgment I made an order requiring the statutory managers to pay

Mrs Hubbard’s costs on the adjournment application of $30,000 and a further sum of

$7500 for wasted costs. Unfortunately I overlooked the issue of disbursements. It was my intention to award disbursements in addition to the other orders.

[4] There will be an order for the statutory managers to pay disbursements amounting to $9117.47.

Admissibility of documents

[5] Since the oral judgment was delivered counsel for the statutory managers and counsel for Mrs Hubbard have reached agreement on a number of admissibility issues that directly concern those parties. No similar issues have been raised by any other people involved in this litigation.

[6] The agreement between the statutory managers and Mrs Hubbard is referred to in paragraphs 4 – 9 of the joint memorandum dated 26 November 2012. Given that agreement, for which I am grateful to counsel, it appears that any remaining admissibility issues can be satisfactorily resolved at the substantive hearing.

Timetable

[7] The following timetable will apply:

(a) Amended originating application and affidavits in support to be filed and served by 21 December 2012.

(b)Any notice of opposition and affidavits in support to…

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 Simpson v Hubbard

Details

AGLC: Simpson v Hubbard [2012] NZHC 3603
Case: [2012] NZHC 3603
Decision Date: 21 December 2012

CaseChat Overview and Summary

In Simpson v Hubbard, the High Court of New Zealand was asked to decide whether Margaret Jane Hubbard, in her personal capacity and as the executrix of her late husband's estate, should be granted access to the proceeds of disputed assets held in escrow by the statutory managers to fund her legal costs in opposing their application. The statutory managers, who were managing the affairs of Aorangi Securities Limited, argued that Hubbard should fund her own litigation. The central legal issues were whether Hubbard had an arguable case to the assets, whether she was impecunious, and whether it was in the interests of justice to allow her to access the disputed assets to fund her litigation. The Court held that Hubbard had an arguable case, was impecunious, and that it was in the interests of justice to allow her to access the assets. The Court ordered that Hubbard's legal costs should be funded from the assets in dispute, subject to certain conditions and restraints on the level of costs. The Court also invited counsel to consider the form of any charge over the assets that might be recovered. The Court reserved costs on the application, as well as leave for any party to apply further on this issue.

The Court found that Hubbard had an arguable case to the assets, which was sufficient to satisfy the first requirement for a preservation order. The Court considered the impecuniosity requirement to be more complex, but ultimately found that Hubbard was unable to fund her litigation from other sources. The Court found that it was in the interests of justice to allow Hubbard to access the disputed assets to fund her litigation, given the importance of the litigation, the proximity of the substantive hearing, and the potential for injustice if Hubbard was not legally represented. The Court ordered that Hubbard's legal costs should be funded from the assets in dispute, with certain conditions and restraints on the level of costs. The Court also invited counsel to consider the form of any charge over the assets that might be recovered. The Court reserved costs on the application, as well as leave for any party to apply further on this issue.

Orders