Smith v Penney - [2013] NZHC 2988

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-003064 [2013] NZHC 2988

BETWEEN NIGEL PHILIP SMITH (in his capacity as a trustee of the Maria Charles Family Trust)
Plaintiff

ANDSTEPHEN CHARLES PENNEY (in his personal capacity and in his capacity as a trustee of the Maria Charles Family Trust) First Defendant

DONNA MARIA SIMUNOVICH (in her personal capacity and in her capacity as a trustee of the Maria Charles Family Trust) Second Defendant

Hearing: 11 and 18 October 2013

Appearances: M Heard and F Whyte for the Plaintiff
W Templeton and S McNabe for the First Defendant
S McCabe for the Second Defendant

Judgment: 12 November 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 12 November 2013 at 3.30 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

SMITH v PENNEY & ANOR [2013] NZHC 2988 [12 November 2013 ]

Introduction

[1] The first defendant, Mr Penney, seeks to set aside or vary a judgment entered against him by Associate Judge Christiansen on 8 August 2013.

[2] The application is opposed by the plaintiff, Mr Smith, and by the second defendant, Ms Simunovich.

[3] The application was expressed to be made pursuant to r 10.9 of the High Court Rules. This was in error. Mr Penney did not appear at the hearing. The judgment given by Associate Judge Christiansen was given by way of summary judgment under r 12.2. The relevant rule in such circumstances is r 12.14. It provides as follows:

12.14 Setting aside judgment

A judgment given against a party who does not appear at the hearing of an application for judgment under rule 12.2 … may be set aside or varied by the court on any terms it thinks just if it appears to the court that there has been or may have been a miscarriage of justice.

[4] This application raises a short point — was there, or may there have been, a miscarriage of justice?

Background

[5] Mr Smith was at all relevant times the independent trustee of a family trust known as the Maria Charles Family Trust (“the trust”). The first and second defendants were his co-trustees.

[6] The defendants are the ultimate beneficiaries of the trust. When it was settled, they were married. However, they separated in or about July 2008, and their marriage was finally dissolved in December 2010.

[7] The trust owns a number of light industrial buildings and residential properties. The majority of the buildings are leased and this generates an income for the trust.

[8] Following the dissolution of the defendants’ marriage, it was proposed that the light industrial properties would be resettled on a new trust to be settled by Mr Penney, and that the residential properties would be resettled on a new trust to be settled by Ms Simunovich.

[9] A matrimonial property agreement recording the proposed resettlements and dealing with other items of relationship property and matters in dispute was signed by the defendants…

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 Smith v Penney

Details

AGLC: Smith v Penney [2013] NZHC 2988
Case: [2013] NZHC 2988
Decision Date: 12 November 2013

CaseChat Overview and Summary

In Smith v Penney, the High Court of New Zealand considered whether a judgment against a defendant should be set aside or varied. The plaintiff, Mr Smith, sought various orders against Mr Penney, who was a trustee of a family trust, for breaching his duties as a trustee. Associate Judge Christiansen granted the plaintiff's application for summary judgment, and Mr Penney subsequently sought to set aside or vary the judgment. The court found that Mr Penney had no substantial grounds of defence, the delay was not reasonably explained, and no irreparable injury would be caused to the plaintiff if the judgment was set aside or varied. The court dismissed Mr Penney's application and confirmed the orders made by Associate Judge Christiansen. The court also appointed new trustees for the trust and directed Mr Penney to purge his contempt within 10 working days. The plaintiff and the other defendant were entitled to an award of costs in their favour in regard to the application to set aside the judgment.

Orders