Simpson v Sax

[2017] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2016-470-48 [2017] NZHC 544

UNDER

High Court Rules Part 19

IN THE MATTER

of an application by one of the trustees of the Luke Simpson and Janine Simpson Family Trust

BETWEEN

LUKE ANDREW SIMPSON AS TRUSTEE/BENEFICIARY OF THE LUKE SIMPSON AND JANINE SIMPSON FAMILY TRUST

Plaintiff

AND

JANINE DAVINA SAX AS TRUSTEE/BENEFICIARY OF THE LUKE SIMPSON AND JANINE SIMPSON FAMILY TRUST

First Defendant

LUKE ANDREW SIMPSON AS TRUSTEE/BENEFICIARY OF THE LUKE SIMPSON AND JANINE SIMPSON FAMILY TRUST

Second Defendant

On the papers
Counsel:	E Eggleston for Plaintiff/Second Defendant G McArthur for First Defendant
Judgment:	24 March 2017

JUDGMENT OF THOMAS J (COSTS)

[1]      By  my  decision  dated  10  February  2017  I  dealt  with  Mr  Simpson’s

application for directions in relation to District Court proceedings faced by the Luke

Simpson and Janine Simpson Family Trust and his Beddoe application.1

1      Simpson v Sax [2017] NZHC 112.

SIMPSON v SAX [2017] NZHC 544 [24 March 2017]

[2]      In my judgment I directed that any submissions regarding costs should be filed within 21 days of the date of the judgment.

[3]      I have now received submissions on behalf of Mr Simpson seeking either that both parties are reimbursed for their costs from the Trust fund or costs should lie where they fall.  No submissions have been filed by or on behalf of Ms Sax.

[4]      In   the   circumstances,   where   there   has   been   the   opportunity  to   file submissions but Ms Sax has chosen not to do so, I will proceed to deal with the question of costs.

[5]      I accept Mr Simpson’s submission that his application was required given the impasse between the trustees as to whether the District Court proceedings should be defended or not.

[6]      I also concur with the submission that  Mr Simpson’s application can  be considered brought in good faith given my observation that there appeared to be a reasonably arguable case in respect of both positions.

[7]      Mr Simpson was not, however, successful on his Beddoe application.  I take note of the matters put forward on Mr Simpson’s behalf alleging that Ms Sax’s conduct had contributed unnecessarily to the time the case has taken.  There is some merit in those observations.

[8]      I accept this is a case where both parties have had a measure of success and in the circumstances it is appropriate that costs lie where they fall.

Thomas J

Solicitors:

Holland Beckett, Tauranga for Plaintiff/Second Defendant

Families Matter Law Practice, Rotorua for First Defendant