Toogood v Fairfield Trustees Limited - [2021] NZHC 2568

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…

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.

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Details

Case: [2021] NZHC 2568
Decision Date: 29 September 2021

CaseChat Overview and Summary

Joanne Maree Toogood, the applicant, filed an application seeking leave to commence a proceeding against Fairfield Trustees Limited and Colin Ralph Toogood, who are the trustees of the John Toogood Trust. The applicant is a former beneficiary of the Trust and is requesting the disclosure of certain documents and the payment of costs. The legal issue in this case is whether the applicant should be granted leave to commence the proceeding under Part 19 of the High Court Rules 2016 instead of Part 18.

The court considered the principles upon which leave is granted under Rule 19.5 of the High Court Rules. The court held that the proceeding in this case is a straightforward application that can be clearly defined and is confined within a narrow compass. The applicant is seeking disclosure of information under the Trusts Act 2019, which does not require particularised pleadings. The court also noted that there is no need for significant interlocutory applications or close case management. The court found that the proceeding can be determined most promptly, inexpensively, and efficiently under Part 19.

The court granted the applicant leave to commence the proceeding under Part 19 of the High Court Rules. The court held that the disclosure 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. The court did not consider that there would be any significant disputes as to the facts upon which the application will turn. The court held that the proceeding can be determined most promptly, inexpensively, and efficiently under Part 19.

The court reserved costs. This decision allows the applicant to proceed with her application for disclosure of information and costs against the trustees of the John Toogood Trust. The court found that the use of Part 19 of the High Court Rules was appropriate in this case, as the proceeding is a straightforward application that can be clearly defined and is confined within a narrow compass. The court held that the proceeding can be determined most promptly, inexpensively, and efficiently under Part 19.

Orders