Sunde v Sunde - [2018] NZHC 3080

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000768

[2018] NZHC 3080

BETWEEN
ROY MELVIN SUNDE

First Plaintiff

MARINA ANNE SUNDE
Second Plaintiff

ANNE VERA SUNDE
Third Plaintiff

LEO ZANE SUNDE
Fourth Plaintiff

AND

LEO ZANE SUNDE, ANNE VERA SUNDE, ROY MELVIN SUNDE, KEVIN PAUL SUNDE and MARINA ANNE

SUNDE as trustees of the Leroy Trust Defendants

Hearing: On the papers

Judgment:

27 November 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 27 November 2018 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Lee Salmon Long, Auckland. Patterson Hopkins, Auckland. Keegan Alexander, Auckland. Cook Morris Quinn, Auckland. JR Wain, Auckland.

SUNDE v SUNDE [2018] NZHC 3080 [27 November 2018]

Introduction

[1] This judgment addresses the application for 2B costs by Roy, Marina and Anne in the wake of their successful summary judgment application,¹ and their allied contention Kevin should bear costs personally, including his own. Kevin says costs should lie where they fall, and in any event, be borne by the Leroy Trust.² I (continue to) use Christian names for ease of reference given commonality of surname.

[2] First, a little background. Roy, Kevin and Marina are brothers and sister. Anne is their mother. In late 2005, all agreed to transfer their respective property interests to the trust. And, for each to be a creditor of the trust, and trustee. Interest was payable by the trust on the investment of each. Each could also withdraw principal. Both required notice.

[3] On 13 March 2018, Roy, Marina and Anne sought payment of interest for identified years; and Marina and Anne sought repayment of principal. The total:
$2,547,152.05. These demands accentuated existing disagreements between Kevin and the rest of the family. Roy, Marina and Anne sought summary judgment. Kevin opposed. Roy, Marina and Anne succeeded. Kevin ultimately abandoned all grounds of opposition.

Should costs lie where they fall even though Roy, Marina and Anne were successful?

[4] Kevin acknowledges a successful litigant is ordinarily entitled to costs. But, he argues circumstances mean costs should lie where they fall. Kevin’s unifying proposition is that Roy, Marina and Anne did not need to bring a claim for summary judgment, and unlike him, acted unreasonably before and after filing it. Kevin relies on a full affidavit which sets out, from his perspective, the genesis of the family dispute—and much else. Roy, Marina and Anne replied in kind. They do not share Kevin’s views. Or recollection.

[5] I decline to enter this mix for two reasons. First, I am not well placed to resolve factual disputes. Second, all this has little relevance to costs. What is important is the litigation, and how it was conducted. As to it, Kevin filed an extensive notice of opposition and affidavit. He alleged the claims by Marina and Anne had the effect of

1 Sunde v Sunde HC Auckland CIV-2018-404-000768, 24 July 2018 (Minute).
2 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 Sunde v Sunde

Details

AGLC: Sunde v Sunde [2018] NZHC 3080
Case: [2018] NZHC 3080
Decision Date: 27 November 2018

CaseChat Overview and Summary

The High Court of New Zealand was presented with a case involving multiple family members who had previously agreed to transfer their property interests to a trust. Roy, Marina, and Anne, who were siblings, as well as their mother Anne, brought a claim against Leo, another sibling, and the trust which Leo was a trustee of. The plaintiffs sought payment of interest for certain years and repayment of principal, which amounted to a total of $2,547,152.05. Following a successful summary judgment application, the plaintiffs sought 2B costs, while Leo argued that costs should lie where they fall and be borne by the trust.

The central legal issue was whether the successful plaintiffs were entitled to 2B costs, or if costs should lie where they fall, and whether the trust should indemnify Leo for his legal fees. Leo contended that the plaintiffs did not need to bring a claim for summary judgment and acted unreasonably before and after filing it. However, the court found that the litigation and how it was conducted was the primary consideration for determining costs, and there was no merit in Leo's opposition to the claims.

Furthermore, the court found that the trust's indemnity provision would only apply if Leo had acted properly and reasonably as a trustee in defending the plaintiffs' claims. However, the court found that there was no defence to the claims, and Leo's opposition lacked merit. Consequently, the court held that Leo must personally pay the plaintiffs' 2B legal costs and may not draw on the trust for his own fees.

In summary, the court ruled that the successful plaintiffs were entitled to 2B costs, and Leo was personally responsible for paying these costs. Additionally, the trust would not indemnify Leo for his legal fees, as he did not act properly and reasonably in defending the claims.

Orders