Spencer v Spencer - [2012] NZHC 55

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2001-485-000857 [2012] NZHC 55

BETWEEN BARRY ROBERT GIUSEPPE SPENCER Plaintiff

ANDBARRY ROBERT SPENCER First Defendant

ANDDAVID JAMES UNDERWOOD PHILIP JOSEPH VAVASOUR BARRY ROBERT SPENCER Second Defendants

ANDSPENCER GROUP LIMITED Third Defendant

Counsel: J C Corry for Plaintiff
Defendants in person

Judgment: 3 February 2012

JUDGMENT OF HON JUSTICE FRENCH
as to Quantum

Introduction

[1] The plaintiff, Robert Spencer, is a beneficiary of the Spencer Family № 2
Trust. Under the terms of the trust, he is entitled to be paid $200 per week out of net income. He is also a beneficiary as to capital.

SPENCER V SPENCER HC WN CIV-2001-485-000857 3 February 2012

[2] He claims that in breach of trust, the trustees failed to make the $200 payments and wrongfully diverted trust funds to the benefit of one of the trustees, his father Barry Spencer.

[3] In my 19 October 2011 decision,1 I upheld those claims and found that the trustees were not exempted from personal liability. The key findings are summarised at [200] of the decision.

[4] My findings required re-calculation of the losses claimed and consideration of the appropriate form of relief. I therefore sought further submissions from the parties on remedy. These were duly provided, followed by a telephone conference call at which the parties were given another opportunity to be heard.

[5] The defendants have filed an appeal against my 19 October decision, and during the conference call asked me to defer any decision on remedy until the outcome of the appeal is known. However, as I explained to the defendants, in my view the appropriate course of action is for me to proceed to give judgment on remedy and for them, if they so wish, to seek a stay of execution pending the appeal.

Discussion

[6] The claim had two aspects. First, a claim for the weekly payments out of net income which it was contended should have been made to Robert. Secondly, a claim for restoration of trust property to the trust.

[7] In his submissions on quantum, Mr Corry provided spreadsheets detailing what was submitted to be the effect of my 19 October judgment in money terms. The defendants did not take issue with the calculations, except for the way in which Mr Corry had treated surplus income. Mr Corry acknowledged that an error had been made in this regard and accordingly amended the calculations. The amended calculations are accepted as correct.

[8] For completeness, I should record that Mr Barry Spencer submitted that the

calculations should be adjusted to the date when the “deficiencies in the original trust

1 Spencer v Spencer HC Wellington CIV-2001-485-000857, 19 October 2011.

deed were pointed out and corrected”. However, having regard to my findings on

liability, I am not persuaded that any such adjustment is warranted.

Robert’s claim for weekly payments of $200 out of net income

[9] I found that, had the trustees complied with their obligations, there would have been net income available…

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 Spencer v Spencer

Details

AGLC: Spencer v Spencer [2012] NZHC 55
Case: [2012] NZHC 55
Decision Date: 3 February 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Justice French dealt with a claim by Robert Spencer against his father, Barry Spencer, and Spencer Group Limited for breaches of trust. Robert claimed that the trustees failed to make weekly payments of $200 out of the net income of the Spencer Family № 2 Trust to him, and instead wrongfully diverted trust funds to benefit Barry. Justice French previously found that the trustees were not exempted from personal liability for the breaches of trust. The court then sought submissions from the parties on the appropriate form of relief and remedy. This decision concerns the quantum of damages to be awarded to Robert.

The court considered two aspects of the claim. Firstly, the failure to make weekly payments of $200 out of net income to Robert. Secondly, the restoration of trust property. The court accepted the plaintiff's calculations, with the exception of the way in which surplus income was treated, which was subsequently corrected. The court found that Robert was owed $65,000 in missed weekly payments, plus interest at 5% per annum. Regarding the restoration of trust property, the court ordered the restoration of $283,680, plus interest, to be held by the plaintiff's solicitors pending the appointment of new trustees. The court also ordered the first and second defendants to pay the plaintiff's costs on a 2B basis.

The court decided to order the restoration of trust property to be held by the plaintiff's solicitors in a separate interest-bearing trust account pending the appointment of new trustees. This was to avoid the difficulty that the defendants refused to resign until their appeal had been heard. The court rejected the third defendant, Spencer Group Limited, from any orders as it had been struck off the Companies Register with no identifiable assets.

Orders