Toogood v Fairfield Trustees Limited
[2021] NZHC 2568
•29 September 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2021-425-000079
[2021] NZHC 2568
UNDER the Trusts Act 2019 IN THE MATTER
of the John Toogood Trust
BETWEEN
JOANNE MAREE TOOGOOD
Applicant
AND
FAIRFIELD TRUSTEES LIMITED and
COLIN RALPH TOOGOOD as trustees of the John Toogood Trust
Respondents
Hearing: On the papers Counsel:
J C D Guest for Applicant
Judgment:
29 September 2021
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment was delivered by me on 29 September 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
TOOGOOD v FAIRFIELD TRUSTEES LTD [2021] NZHC 2568 [29 September 2021]
[1] This is an application for leave to commence a proceeding by way of originating application under pt 19 of the High Court Rules 2016.
[2] The respondents are the trustees of the John Toogood Trust (the Trust). The applicant is a former beneficiary of the Trust and she wishes to commence a proceeding for orders that the respondents provide her with copies of documents relating to the Trust and an order that the respondents personally pay the costs of the application.
[3] There has been a good deal of correspondence between the applicant’s lawyer and both lawyers acting for the trustees and the second respondent, Colin Toogood. Some information has been provided to the applicant as requested but Colin Toogood has stated in correspondence to the applicant’s lawyer that no further information will be provided and no further correspondence entered into concerning outstanding requests for information.
[4] The proposed application will be made in reliance on provisions in the Trusts Act 2019.1 The documents of which the applicant seeks disclosure are limited to:
(a)the Trust’s annual financial accounts for the years 2015 to 2021; and
(b)any memorandum of wishes of the settlor of the Trust.
[5] Ordinarily, proceedings seeking relief under the Trusts Act 2019 will be commenced under pt 18 of the High Court Rules.2 However, under r 19.5 the Court may in the interests of justice permit a proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application under pt 19. The Court’s permission may be sought without notice.3
[6] The proceeding the applicant proposes to bring against the respondents is not one mentioned in rr 19.2 and 19.4 and she requires leave to proceed under pt 19.
1 Counsel has identified ss 49, 51 and 52 of the Trusts Act 2019.
2 High Court Rules 2016, r 18.1(b)(xiii).
3 Rule 19.5(2).
[7] The principles upon which the Court relies in granting leave under r 19.5 are well-established. The interests of justice means that the Court must secure the just, speedy and inexpensive determination of the proceeding in considering an application under r 19.5.4 The use of the pt 19 procedure is not limited to applications where there is no opposing party.
[8]In Hong Kong and Shanghai Banking Corp Ltd v Erceg, Asher J said:5
[25] These cases show that the type of proceeding suited to the originating application procedure is a straightforward application, not requiring detailed pleadings or interlocutory orders for its fair resolution. Such a type of proceeding tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is the possibility of cross claims or counterclaims.
[9] In Clarkson v Clarkson, Cooke J compared the pts 18 and 19 procedures and granted leave to bring an application seeking the removal of trustees, the appointment of an independent trustee and for a variation to the terms of the Trust Deed using the pt 19 procedure.6 The interests of justice requirement in r 19.5 was met because of the possibility the parties may lose perspective and the real prospect that the proceeding would be uneconomic.7 Cooke J considered it appropriate to be guided by the procedural pathway that reduced the prospect of unnecessary interlocutory steps and focused on what was necessary to enable the dispute to be resolved.8
[10] Here, I am satisfied that it is appropriate to grant the applicant leave to proceed under pt 19. The disclosure that is sought is not wide-ranging and the dispute falls within a very narrow compass. The applicant will rely primarily on the statutory provisions in the Trusts Act for the relief sought. There is no need for particularised pleadings. I cannot imagine that there will be any significant interlocutory applications or close case management required. I do not consider, either, that there will be any
4 Solar Bright Ltd v Martin [2019] NZHC 300 at [18].
5 Hong Kong & Shanghai Banking Corp Ltd v Erceg (2010) 20 PRNZ 652 at [25].
6 Clarkson v Clarkson [2020] NZH 2211 at [18].
7 At [18].
8 At [19].
significant disputes as to the facts upon which the application will turn. In my view, the proceeding can be determined most promptly, inexpensively and efficiently under pt 19.
Result
[11] The applicant is granted leave to commence this proceeding for the disclosure of information and costs by way of the originating application procedure in pt 19 of the High Court Rules 2016.
[12]Costs are reserved.
O G Paulsen Associate Judge
Solicitors:
Downie Stewart, Dunedin