Triezenberg v Mason
[2025] NZHC 1918
•15 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-000473
[2025] NZHC 1918
UNDER Rules 9.4(f) and 19.4A of the High Court Rules 2016 and the inherent jurisdiction of the High Court IN THE MATTER OF
an application for Beddoe orders by VICKI ANN TRIEZENBERG and PAUL MORLEY
DODD as trustees of the MAMARI TRUST and MAMARI (No.2) TRUST
BETWEEN
VICKI ANN TRIEZENBERG
Applicant
AND
ALEXANDER CHARLES MASON
Respondent
Hearing: 17 June 2025 Appearances:
V Bruton KC and J Cundy for the Applicant G Thwaite for the Respondent
Judgment:
15 July 2025
JUDGMENT OF HARVEY J
This judgment is delivered by me on 15 July 2025 at 4 PM pursuant to r 11.5 of the High Court Rules.
…………………………………………….
Deputy Registrar
Counsel:
Vanessa Bruton KC, Auckland
Solicitors:
Jack Cundy, AucklandGregory J Thwaite, North Shore, Auckland
TRIEZENBERG v MASON [2025] NZHC 1918 [15 July 2025]
Introduction
[1] This is a long running family dispute about the control of two trusts and their assets — the Mamari Trust and the Mamari Trust (No 2) (the Trusts). There has already been a considerable amount of complex and costly litigation, and the relationship between Vicki Triezenberg and Paul Dodd (the Trustees) and Alexander Mason (the respondent) has largely disintegrated.1
[2] Mr Mason has brought new proceedings seeking the removal of the Trustees, the appointment of himself and a nominee as replacement trustees, the variation of the trust deeds to vest the power of appointment of trustees in himself, referral to arbitration, and the payment of costs and damages by the Trustees to the Mamari (No 2) Trust. Mr Mason also seeks summary judgment and interim relief. In response, the Trustees have filed this application for Beddoe orders relating to the medical examination of Mr Mason, the appointment of a litigation guardian, an application to strike out Mr Mason’s statement of claim, opposition to his application for summary judgment and interim relief, and indemnity for costs.
[3] During the hearing, I implored the parties to consider how the litigation has already consumed a significant amount of the Trusts’ property and suggested that a negotiated outcome would be strongly preferable. While it is necessary to determine the application for Beddoe orders, I reiterate that opportunities to resolve this proceeding outside the courts should not be ignored. They should be pursued despite the parties’ earlier unsuccessful attempts to do so. I revisit this topic at the end of this judgment after determining the substantive Beddoe orders application.
Background
[4] Mr Mason, an 89-year-old retired builder, married Wendy Cambie in 1956. They had three children, Michelle Richardson, Ms Triezenberg and Mark Mason. In
1 See Rothera v Rothera [2018] NZHC 375, [2018] NZFLR 324; Mason v Triezenberg [2019] NZFC 1021; Mason v Mason [2019] NZHC 3092; Triezenberg v Mason [2019] NZHC 14 [Removal decision]; Triezenberg v Mason [2019] NZHC 920; Triezenberg v Mason [2019] NZHC 2125; Mason v Triezenberg [2022] NZCA 138; Mason v Triezenberg [2022] NZSC 99; Mason v Dodd [2020] NZHC 1508; Mason v Dodd [2020] NZHC 2005; Mason v Dodd [2024] NZHC 219; Mason v Dodd [2024] NZHC 1245; Mason v Dodd [2020] NZHC 2916; and Mason v Triezenberg [2025] NZHC 584 [Caveat decision].
time, after completing an apprenticeship, Mr Mason established his own building company, AC Mason Ltd. He secured contracts, supervised the completion of the work and was responsible for client management. Mrs Mason acted as administrator and the business flourished under their oversight.
[5] On 26 April 1994, Mr and Mrs Mason settled the Mamari Trust. They were the sole trustees and were beneficiaries alongside their children and grandchildren. On 20 May 2013, Mr and Mrs Mason settled the Mamari Trust (No 2). The trustees were Mr and Mrs Mason, Ms Triezenberg and Mr Dodd. The beneficiaries were Mr and Mrs Mason, their children and grandchildren.
[6] On 31 May 2013, Mr and Mrs Mason appointed Ms Triezenberg and Mr Dodd as additional trustees of the Mamari Trust. However, one day earlier, on 30 May 2013, Mr and Mrs Mason signed a memorandum of guidance in relation to the Mamari Trust. In summary, the memorandum stated that the comfort and welfare of Mr and Mrs Mason would be the primary consideration of the trustees. It is common ground that this memorandum was also intended to apply to the Mamari Trust (No 2).2
[7] Over time, Mr and Mrs Mason transferred assets to and between the trusts, including their home, their factory and $3.4 million in cash. However, a significant amount of Trust funds has been expended on the litigation to date. The Mamari Trust owns a residential property (in which Mr Mason lives) which has a June 2021 capital value of $2,025,000. The Mamari Trust also owns a commercial property which has a June 2021 capital value of $1,450,000. The Mamari Trust (No 2) has an investment portfolio worth $760,965 as at 31 March 2025. It also has a term deposit of $250,000 due to mature on 9 June 2025 and approximately $70,000 in a savings account.
The dispute
[8] The relationship between the parties began to deteriorate after Mrs Mason was certified as mentally incapable in 2015 due to advanced dementia. Ms Triezenberg was granted enduring power of attorney over Mrs Mason and admitted her to a care home. Mr Mason strongly disagreed with this decision and this led to costly litigation.
2 Removal decision, above n 1, at [20]–[21].
In turn, these disputes resulted in dysfunction and deadlock between the parties as trustees. Following this deadlock and the ensuing litigation, Mr and Mrs Mason were removed as trustees of the Trusts by Fitzgerald J in 2019.3
[9] Mr Mason then pursued a negligence claim against Mr Dodd for allegedly incorrect advice when establishing the Trusts. The application for summary judgment failed and the substantive application was eventually discontinued following the death of Mrs Mason on 26 January 2024.
Legal principles
[10] The proceedings brought by Mr Mason involve a “hostile” claim against the Trustees seeking, inter alia, their removal and damages. In proceedings which are hostile or in which the trustees are otherwise “self-interested”, Beddoe orders are generally less likely to be granted.4 Nonetheless, it is wrong to say they will only be granted in exceptional circumstances.5 The fundamental question is whether it is in the best interests of the trusts, and the beneficiaries as a whole, having regard to all the circumstances. This may include the need to balance the interests of different beneficiaries, as well as the interests of beneficiaries and trustees. This approach conforms with the principle that trustees ought to be indemnified for costs properly and reasonably incurred for the benefit of the trust.6
[11] What matters is whether trustees are acting in the best interests of the trust rather than for their own benefit — if so, then they are entitled to an indemnity even if they incidentally secure a personal benefit from a successful claim or defence or where there are allegations of breach of trust.7 The greater the degree of self-interest, the less likely predetermination of the matter is in the best interests of the trust. However, there are instances were even self-interested defences by trustees warrant
3 Removal decision, above n 1.
4 McCallum v McCallum (as trustees of the McCallum Family Trust) [2021] NZCA 237 at [3] and [33]–[35].
5 McLaughlin v McLaughlin [2018] NZHC 3198, [2019] NZAR 286 at [28].
6 McLaughlin v McLaughlin, above n 5, at [29].
7 Spencer v Fielder [2014] EWHC 2768 (Ch) at [27], cited in McLaughlin v McLaughlin, above n 5, at [31] and McCallum v McCallum, above n 4, at [45].
appropriate Beddoe orders, such as where the substantive proceedings are weak or vexatious and should be tested by way of strike-out.8
What are the best interests of the Trusts?
[12] As foreshadowed, despite the potential self-interest of the Trustees in defending Mr Mason’s proceedings, the question when considering the Trustees’ Beddoe application is whether the proposed actions would be in the best interests of the Trusts, and the beneficiaries, having regard to all the circumstances. The Court must then balance the interests of different beneficiaries.9 Here the substantive claims sought by Mr Mason would benefit himself as a beneficiary. The assets would largely return to Mr Mason’s ownership and control, albeit with a limited scope for other beneficiaries to make claims to the Trusts’ property through arbitration. This would, at first glance, appear to align with the memoranda of guidance which states that Mr Mason’s comfort and welfare are to be the primary considerations of the Trustees.
[13] On the other hand, Mr Mason’s claims are detrimental to the interests of the other beneficiaries, including his children and grandchildren. Given the dynamics within the family and Mr Mason’s position that the Trusts’ property belongs to himself and should never have been settled onto the Trusts, it is not clear that the other beneficiaries’ legitimate interests in the property would be protected or preserved if Mr Mason’s claims were granted. Fitzgerald J’s concerns from 2019 remain pertinent, given that Mr Mason disputes the very concept of the Trusts, does not understand the role and duties of a trustee, and would not be capable of giving consideration to some of the beneficiaries (particularly his two daughters, Ms Triezenberg and Ms Richardson) in a fair and impartial manner.10
[14] The significance of the memorandum of guidance is also relevant. The Court of Appeal has found:11
[36] Settlors are entitled to express their wishes for the benefit of trustees, and trustees are entitled to take them into account. They can be important
8 McCallum v McCallum (as trustees of the McCallum Family Trust), above n 4, at [45].
9 McLaughlin v McLaughlin, above n 5, at [29].
10 Removal decision, above n 1, at [124]–[130].
11 Chambers v SR Hamilton Corporate Trustee Ltd [2017] NZCA 131, [2017] NZAR 882 (footnotes omitted).
guidance to them in the exercise of discretionary powers. However trustees, whatever a settlor’s wishes, must conscientiously apply their independent discretion in exercising their powers. Wishes can only be taken into account if they are not inconsistent with the purposes of the trust as appears from its written terms. Trustees should not blindly obey all settlor instructions. It is necessary for trustees to read and understand a memorandum of guidance to discern the settlor’s wishes, and then with those wishes in mind make an independent assessment of the appropriate course of action taking into account not just the memoranda, but all relevant factors.
[15] Although the Trustees must take account of the memorandum they are not bound to rigidly follow its terms.12 Rather, they need to consider all relevant factors, including the written terms of the Trusts — which appoint beneficiaries other than Mr Mason. Further, while the memorandum suggests that Mr Mason’s comfort and welfare should be the primary consideration, it does not suggest that it is the only one.
[16] Overall, the best interests of the Trust and the beneficiaries as a whole must be assessed with reference to all the beneficiaries — albeit that Mr Mason’s interests in his own comfort and welfare are to be weighted more heavily in accordance with the memorandum. In such circumstances, and at this preliminary stage, I accept that opposition to Mr Mason’s claims appears to be in the best interests of the Trusts and the beneficiaries as a whole. That would seek to preserve the other beneficiaries’ legitimate interests in the property. A crucial correlate to this finding is that sufficient distributions from the Trusts can, should and seemingly are being provided for Mr Mason’s comfort and welfare. Notably, the Trustees continue to provide for Mr Mason’s accommodation in his family home alongside providing for his expenses and a monthly allowance.
[17] This approach is also seemingly envisaged by the memorandum of guidance, which provided for the Trustees to pay or apply so much of the income or capital of the Trusts as they think fit for Mr Mason’s maintenance and benefit — rather than to transfer all the funds to him. This is supported by the fact that, from its inception, the Mamari Trust (No 2) appointed Mr Triezenberg and Mr Dodd as trustees and named a raft of beneficiaries other than Mr and Mrs Mason. Further, as stated in the memorandum of guidance itself, a purpose of the Trusts was to ensure that “members
12 Removal decision, above n 1, at [156]–[157]; and Caveat decision, above n 1, at [64].
of the family” (not only Mr and Mrs Mason) are able to benefit from the capital and income of the Trusts.
[18] If Mr Mason considers that specific payments for his comfort or welfare are being unreasonably withheld by the Trustees, that might provide a narrower cause of action against which Beddoe orders may be less warranted. However, his current claims appear at first blush to jeopardise the interests of all other beneficiaries to the Trusts and call to mind Fitzgerald J’s concern that, at the root of this litigation, Mr Mason still “disputes and does not believe in the very concept of the two trusts” and that his view remains “essentially that the trust assets are his (and Mrs Mason’s) and he ought to be able to do with them as he likes”.13
[19] In summary, I find that at the present stage some form of opposition to Mr Mason’s claims is likely in the best interests of the Trusts and the beneficiaries as a whole. The next question is whether the specific steps proposed by the Trustees would also be in the best interests of the Trusts and their beneficiaries.
Should Mr Mason be subject to a medical assessment as to his cognitive capacity?
[20] As foreshadowed, the Trustees sought an order directing them to apply for a medical examination of Mr Mason and, subject to the results of that examination, to apply for the appointment of a litigation guardian.14
[21] Mr Cundy submitted that the Trustees are concerned that Mr Mason may be an “incapacitated person” within the meaning of r 4.29. In short, that he may be incapable of understanding the issues on which his decision is required as a litigant conducting the proceedings, or that he may be unable to give sufficient instructions to issue or compromise the proceeding. [REDACTED]. Past judgments have also questioned his mental acuity.15 Mr Mason’s history of unsuccessful and persistent litigation supports the Trustees’ concerns that Mr Mason’s mental condition should be independently assessed. This is also supported by documents and correspondence
13 Removal decision, above n 1, at [125].
14 Pursuant to the Senior Courts Act 2016, s 44 and the High Court Rules 2016, rr 4.35 and 9.30(1).
15 See Removal decision, above n 1, at [127]–[128]; Mason v Mason [2019] NZFC 1021 at [21(a) and (i)]; and Mason v Dodd [2024] NZHC 219 at [27].
Mr Mason has produced since his wife’s death. Mr Cundy contended it is in the interests of all beneficiaries, including Mr Mason, for a medical examination to occur and, if necessary, the appointment of a litigation guardian.
[22] In reply, Mr Thwaite submitted that there is no evidence of Mr Mason’s mental incapacity and that, in contrast, his capacity is supported on a commonsense basis by the affidavits provided by people in regular contact with him. Nonetheless, when pressed during the hearing, counsel confirmed that Mr Mason was willing to undergo a medical examination by a doctor of his choosing — [REDACTED].
Discussion
[23] As Mr Mason has agreed to undergo a voluntary assessment with [REDACTED], it would seem unnecessary for the Trustees to make a formal application for a medical examination at this point. On the other hand, should this voluntary examination not occur, I consider it would be in the interests of the Trusts, and of the beneficiaries as a whole, for that application to proceed. This is because any lack of capacity on the part of Mr Mason could have significant effects on the ongoing litigation — including the potential appointment of a litigation guardian. Ensuring the litigation is conducted appropriately and efficiently (and with an appropriate scope for compromise) is in the best interests of all the beneficiaries, including Mr Mason. Furthermore, a medical examination (though understandably offensive to Mr Mason) is relatively quick and inexpensive.
[24] I acknowledge that the evidence as to Mr Mason’s capacity is limited. [REDACTED]. Although Mr Mason has provided affidavits supporting capacity from a commonsense perspective, I accept Mr Cundy’s argument that capacity under r 4.29 is a task-specific inquiry and that laypersons may not be in a position to observe capacity in the sense that matters.16 In contrast, I consider that the comments by various judges — who have had the opportunity to view and assess how Mr Mason has conducted his various proceedings — may be more relevant to assessing his capacity under r 4.29. Nonetheless an expert medical assessment is required to determine the matter.
16 Gorringe v Pointon [2022] NZHC 342 at [141].
[25] I find that Mr Mason should be provided with an opportunity to voluntarily obtain a medical examination from [REDACTED] to assess whether he is incapacitated under the definition in r 4.29. Mr Mason will have 40 working days from the date of this judgment to do so and must file an updating memorandum once the test is complete. The results of the medical examination must be served on the Trustees and filed with the Court as soon as they are obtained. The Trusts shall indemnify Mr Mason’s reasonable costs in obtaining this medical examination. Mr Thwaite, or other counsel for Mr Mason, should advise the case officer if more time is required or if a different medical practitioner will need to be used.
[26] If Mr Mason fails to voluntarily obtain this medical assessment within the time provided, I direct the Trustees to apply for a medical examination. Their reasonable costs in doing so are pre-emptively indemnified and are to be properly met from the Trusts’ assets. If the results of the examination reveal that Mr Mason is an “incapacitated person” under r 4.29, it is in the interests of the Trusts and the beneficiaries for the Trustees to apply for the appointment of a litigation guardian to ensure any litigation is carried out appropriately and efficiently — and to protect and preserve the Trusts’ assets. If this occurs, I make an order directing the Trustees to apply for the appointment of a litigation guardian for Mr Mason. Their reasonable costs are pre-emptively indemnified and are to be properly met from the Trusts’ assets.
[27] Finally, I consider it is appropriate that the substantive proceedings are stayed until the process outlined above is complete. While this may postpone the hearing of Mr Mason’s substantive application, it seems called for to ensure the medical examination is not rendered nugatory. In addition, depending on the availability of [REDACTED] or another appropriate medical practitioner, the willingness by Mr Mason to voluntarily undergo such an examination expedites this process.
The strike-out application
[28] The Trustees also seek a Beddoe order directing them to apply to strike out Mr Mason’s statement of claim. Mr Cundy submitted that all grounds under r 15.1 are engaged. First, Mr Mason seeks to relitigate matters that have already been determined against him. Therefore, they amount to a breach of res judicata and render
his proceeding vexatious, an abuse of process or both.17 Second, Mr Mason’s statement of claim will cause prejudice and delay as it is unnecessarily long, pleads extensive matters of evidence, and many of its allegations are irrelevant to the pleaded claims.18 Third, parts of the pleading disclose no reasonably arguable cause of action.19
[29] Counsel contended that it is in the best interests of the Trusts and the beneficiaries as a whole for the Trustees to apply for strike-out. This application can be determined efficiently at a short hearing and, if successful, will either bring the entire proceeding to an end or will result in a narrower and more properly pleaded claim — resulting in cost savings for the Trusts and, by extension, for the beneficiaries.
[30] In reply, Mr Thwaite argued that res judicata does not bar Mr Mason’s claims for two reasons. First, the earlier litigation concerned whether Mr Mason should be a trustee in 2019 and in the circumstances as they stood at that time. In contrast, the present proceeding concerns whether Mr Mason should be a trustee in 2025 in the present circumstances. Second, the earlier litigation rested upon judicial assessment of the parties’ credibility — following the action and inaction of Mrs Mason’s welfare guardian and the Trustees since 2019. The courts could now reach a different outcome.
[31] More generally, counsel submitted that the proceedings are hostile and that the Trustees are self-interested in defending them because their removal lies at the heart of Mr Mason’s claims. A Beddoe order would be inappropriate in the circumstances and the Trustees should proceed without any pre-determination as to their indemnity.
Discussion
[32] Prima facie, the proposed strike-out application has merit. Mr Mason’s statement of claim is improperly pleaded, being prolix, often irrelevant and pleading extensive matters of evidence. Many of the pleadings also seek to relitigate matters already determined and are therefore vexatious, an abuse of process or a breach of res judicata. Much of the pleading on the removal of the Trustees seems to retrace grounds
17 High Court Rules 2016, r 15.1(c) and (d); and Craig v Stringer [2020] NZCA 260 at [16]–[20].
18 Rule 15.1(b).
19 Rule 15.1(a).
determined by previous judgments, including that of Fitzgerald J in 2019. While there may be new causes of action accruing after the date of that judgment, the pleading needs to be refined. In short, Mr Mason’s claim requires significant amendment to enable the Trustees to meaningfully respond to its allegations.
[33] In which case, I agree that a strike-out application would be in the best interests of the Trusts and the beneficiaries as a whole despite the incidental benefits to the Trustees. It falls into the category of Beddoe orders relating to strike-out applications against weak or vexatious claims as outlined in McCallum.20 In particular, the strike- out application will likely serve to minimise the costs of responding to Mr Masons’ claims, which benefits the Trusts and its beneficiaries.
[34] I grant an order directing the Trustees to apply to strike out Mr Mason’s statement of claim. Their reasonable costs in doing so are pre-emptively indemnified and are to be properly met from the Trusts’ assets.
Opposition to summary judgment and interim orders
[35] As foreshadowed, Mr Mason seeks summary judgment on all causes of action as well as interim orders:
(a)preventing the Trustees from disposing of the Trusts’ property to any beneficiary other than Mr Mason or from using the property to pay the Trustees’ legal fees without the approval of Mr Mason or the Court; and
(b)requiring the Trustees to make an interim capital distribution of
$1 million to Mr Mason from the Mamari (No 2) Trust.
[36] The Trustees seek an order directing them to oppose Mr Mason’s application for summary judgment and interim orders.
[37] Mr Cundy submitted that Mr Mason’s claims are unsuitable for summary judgment and would require a detailed factual enquiry. There is no prospect of the
20 McCallum v McCallum (as trustees of the McCallum Family Trust), above n 4, at [45].
Court summarily determining the claims in Mr Mason’s favour, particularly in light of Fitzgerald J’s previous findings.21 Counsel also contended there is no proper basis for the interim orders sought as Mr Mason does not have a seriously arguable case and, in any event, the balance of convenience lies firmly against them. Further, this Court has already determined that Mr Mason has no legal or equitable interest in the properties owned by the Mamari Trust,22 and the interim capital distribution of $1 million that Mr Mason seeks from the Mamari (No 2) Trust almost exceeds that trust’s total assets. In these circumstances, Mr Cundy argued it is in the best interests of the Trusts and the beneficiaries as a whole that they oppose these applications.
[38] Mr Thwaite responded that, as above, the litigation is hostile and therefore the Trustees should be required to take the chance on whether their action in the underlying proceeding ultimately merits indemnity, rather than pre-determining the matter. However, I have already addressed this argument in depth above at [14]–[22].
Discussion
[39] I accept Mr Cundy’s argument that, on the face of the pleadings and evidence to date, a dispute of this kind is unlikely to be amenable to the summary judgment process. It involves disputes of fact and, as referred to by Mr Thwaite himself, issues of credibility. In addition, given that the interim orders sought would remove almost the entire corpus of the Mamari Trust (No 2), and given the prima facie weakness of Mr Mason’s application for summary judgment (as evident from my discussion of the strike-out application), I consider it is in the best interests of the Trusts to oppose summary judgment and the interim orders. I also agree that this opposition should be heard simultaneously with the Trustees’ strike-out application to save costs.
[40] The Trustees are directed to oppose Mr Mason’s application for summary judgment and interim orders. Their reasonable costs in doing so are pre-emptively indemnified and are to be properly met from the Trusts’ assets.
21 Removal decision, above n 1, at [124]–[131].
22 Caveat decision, above n 1.
Further Beddoe orders
[41] The Trustees do not seek directions from the Court relating to any appeals of the interlocutory matters discussed in this judgment. Neither do they seek directions in relation to the substantive defence against Mr Mason’s claims. However, they do seek a direction to apply for any further Beddoe orders after the interlocutory applications have been resolved at first instance.
[42] While it might be appropriate for the Trustees to seek further Beddoe orders at such a time, there is insufficient information upon which to base such an order, given that the outcomes of the interlocutory applications are unknown. Therefore, without speaking to the merits of such an application, I do not grant an order directing the Trustees to pursue it.
Costs incurred in obtaining a stay of the current proceedings
[43] The Trustees successfully applied to stay these proceedings until the determination of their Beddoe order application.23 They seek an order that the costs incurred in making that stay application have properly been met from the Trusts.
[44] Mr Cundy submitted that the Trustees made the stay application in order to protect the Trusts’ position in circumstances where it was in the best interests of the Trusts and the beneficiaries as a whole for them to do so. The Trustees acted properly and reasonably and there is no basis on which they should be denied an indemnity for the proper and reasonable costs of the application.24
[45] Mr Thwaite contended that the Trustees should not be entitled to any indemnity due to their misconduct and the respondent’s general position that any opposition from the Trustees to Mr Mason’s claims is not in the best interests of the Trusts or the beneficiaries as a whole. Moreover, counsel argued that the Trustees are seeking Beddoe orders and a stay of the proceedings as a means of playing for time against an 89-year-old litigant.
23 Mason v Triezenberg HC Auckland CIV-2024-404-2788, 10 March 2025 (Minute of Associate Judge Cogswell).
24 McCallum v McCallum (as trustees of the McCallum Family Trust), above n 4, at [32].
Discussion
[46] I see no reason to deny the Trustees their indemnity in the circumstances. The application to stay the proceedings was successful and was brought in order to preserve the position of the Trusts while obtaining this Court’s directions. I accept that the costs were reasonably and properly incurred in the best interests of the Trusts and the beneficiaries as a whole. Therefore, they were properly met from the Trusts’ assets.
[47] Nonetheless, I appreciate Mr Mason’s concerns about the time-consuming nature of litigation. I do not fault the Trustees for this: it is an unfortunate reality that resolving matters through the courts is a lengthy process. Accordingly, I reiterate to the parties the value and urgency of seeking a negotiated resolution to their present disputes, which will be discussed at the end of this judgment.
Opposition to Mr Mason’s caveat proceeding
[48] In advance of this Beddoe application, the Trustees opposed Mr Mason’s originating application to sustain his caveat over the Mamari Trust’s commercial property at Captain Springs Road. This was because the lease over that property was scheduled to end on 31 March 2025 and the Trustees were concerned that the caveat would impact their ability to secure a new lease or to sell the property. The Trustees considered it was in the best interests of the Mamari Trust and the beneficiaries as a whole for the caveat to lapse — which it did following the judgment of Associate Judge Cogswell.25 The Trustees now seek an order that the costs incurred in opposing the application have been properly met from the Trusts’ assets.
Discussion
[49] I agree with Mr Cundy that opposition to Mr Mason’s application was a proper response by the Trustees carried out to protect the position of the Mamari Trust. To fail to act would have been contrary to their duties to protect the interests of all the beneficiaries and the trust assets. Moreover, the Trustees were successful in their opposition and Associate Judge Cogswell noted that they had not breached their duties
25 Caveat decision, above n 1.
in opposing the application.26 I am satisfied that the Trustees should be indemnified and that the costs of their opposition have been properly met from the Trusts’ assets.
Costs incurred in the present application
[50] The Trustees seek an order that the costs incurred in making the present application should be properly met from the assets of the Trusts.
[51] Mr Cundy submitted that Mr Mason has expressly objected to the Trustees’ costs being met from the Trusts’ assets absent a Court order in both the underlying substantive proceeding (see above at [2]) and in his proceeding seeking to maintain a caveat (see above at [54]). Given Mr Mason’s position, there was doubt about the steps the Trustees should take. They received legal advice recommending that they make this Beddoe orders application. In such circumstances, and given that the Beddoe orders application was proper and reasonable, counsel contended that an indemnity is warranted.27
[52] In contrast, Mr Thwaite argued that the present application is unnecessary, flawed or both. It has delayed the determination of Mr Mason’s application for summary judgment by half a year, which is particularly significant given Mr Mason’s advanced age. Furthermore, the Trustees failed to disclose the passing of Mrs Mason, Ms Triezenberg’s conflict of interest as both a trustee and a beneficiary, and Mr Dodd’s refusal to acknowledge his obligations under a memorandum of guidance. Mr Mason also complained about what he considered was Ms Triezenberg and Mr Dodd’s non-compliance with the Mamari (No 2) Trust Deed.
Discussion
[53] The Trustees have largely been successful in their application for Beddoe orders. Their concerns given Mr Mason’s position towards indemnities were reasonable and justified them seeking the Court’s guidance on the matter. They have acted honestly and reasonably in doing so, and are therefore entitled to an indemnity.
26 Caveat decision, above n 1, at [35].
27 Pratley v Courtney [2018] NZCA 436, [2018] NZAR 1787 at [18]; and McCallum v McCallum (as trustees of the McCallum Family Trust), above n 4, at [71].
[54] Again, I acknowledge the delay in concluding Mr Mason’s claims. As to the alleged failure by the Trustees to disclose various matters, I do not consider this claim to be of much weight. First, the application is not currently without notice or ex parte. Although it was originally filed ex parte while directions as to service were sought per r 19.4A, service has now been effected. Mr Mason has been provided with an opportunity to oppose the application and has done so. In any case, I find that the matters raised by Mr Thwaite have been addressed in the Trustees’ application, affidavits and submissions. Furthermore, although Mr Mason alleges misconduct by the Trustees as set out in his statement of claim, this does not demonstrate misconduct in relation to their current application for Beddoe orders, and the relevance of the Trustees’ self-interest has already been addressed above at [14]–[22].
[55] For completeness, I also note that nothing can be inferred from the lack of participation of the other beneficiaries, such as the grandchildren. They might support the application, they might oppose it, they might be apathetic. Without their input, attempting to determine their views would be speculative and inappropriate.
[56] In summary, I agree that Trustees should be indemnified for the costs of the present application, which should be properly met from the Trusts’ assets.
Is a negotiated resolution realistic?
[57] Having settled the substantive issues before me, I return to comment on the possibility of a negotiated resolution between the parties. During the hearing, counsel confirmed that the ongoing litigation would have likely cost the Trusts and Mr Mason in excess of $1 million in legal fees. As I intimated in my judgment of 23 January 2025, this costly and personally corrosive litigation is counter-productive for the parties — a father and his children.
[58] Mr Mason seeks to regain control of assets he continues to regard as belonging to himself and his late wife. The Trustees, understandably, seek to act in accordance with their duties and in the best interests of all the beneficiaries. Mr Thwaite argued that the Trustees are employing a strategy of attrition given their access to trust funds and Mr Mason’s increasing age. However, as discussed above at [59], I accept the
trustees do not have an unfettered ability to incur legal costs and they have sensibly taken the precaution of seeking the Court’s approval via a Beddoe orders application.
[59] As I implored counsel and the parties during the hearing, it is an understatement to say that a negotiated outcome would be preferable and sensible in this case rather than continuing the costly litigation that has significantly depleted the Trusts’ funds. Where trust funds can be eroded to such a high degree, taking account of the liquid assets of the Trusts, genuine questions arise over what is in the best interests of the beneficiaries and the reasonableness of the conduct of the Trustees (even though this application has been granted in their favour).
[60] Similarly, at first blush, Mr Mason’s continuing litigation is not likely to provide him with the outcomes he seeks. While his sentiments are understandable — that the assets originally belonged to him and his late wife, that he was persuaded to put them into trusts, and he now regrets the loss of control of those assets — he still has to confront the reality, as underscored by Fitzgerald J, that those assets are now settled on trusts.28 It seems unlikely, given the background circumstances of this case, including the previous litigation and Mr Mason’s age and health, that he will be reinstated as a trustee or that the Trusts will be effectively wound up. The only guaranteed way this could occur is for the Trustees, with the support of the Trusts’ beneficiaries, to voluntarily agree to Mr Mason’s proposals. When considered against the contentious background of these proceedings, that prospect seems remote.
[61] The parties must be alive to the reality that a negotiated outcome would invariably involve compromise on both sides. The idea that the Trustees would simply transfer assets back to Mr Mason without a process or conditions is unrealistic. Similarly, the notion that Mr Mason will desist from continuing litigation also seems unlikely. A compromise might, for example, involve dividing the Trusts’ property and/or granting life interests over relevant real property to Mr Mason with the proviso that he may not alienate, mortgage or otherwise charge those real properties.
[62] Such solutions could ensure Mr Mason can live with dignity in his own home for the foreseeable future and have sufficient capital or rental income to live
28 See Removal decision, above n 1, at [125]–[126].
comfortably for the remainder of his life — surely a desirable position for him. The Trusts could retain ownership over a sufficient portion of the liquid assets to provide for the other beneficiaries and, in addition, potentially possess a remainder interest over the real properties if Mr Mason is granted a life interest. In the overall circumstances of a fractured family, this also does not seem like an undesirable outcome. Most importantly, it would avoid consuming further trust funds in litigation.
[63] There will be other potential compromises or agreements that could be explored. However, for a negotiated outcome and an end to litigation to be a real possibility, Mr Mason would need to significantly reduce his expectations. The alternative is a continuation of the litigation which, as Mr Thwaite has underscored, will likely outlast Mr Mason. How that can be seen as a sensible solution is not readily apparent. Given his success rate to date, Mr Mason must reflect carefully on his prospects of prevailing.
[64] In this context, the idea of mediation to consider solutions along the lines that I have suggested, or as developed by the parties, may not be unrealistic. The short point is that for both the Trustees and Mr Mason to continue to obdurately turn their faces away from each other will ensure the continuation of this litigation for the foreseeable future, and at great financial and emotional cost to both sides. It is not clear that this is in Mr Mason’s best interests nor in the best interests of the Trusts or their beneficiaries. It is for these reasons that I have stepped beyond what may be appropriate in what may prove to be a forlorn effort to encourage the parties to attempt, once again, to resolve these matters without further litigation. Moreover, that these observations may ultimately fall on stoney ground is still a risk worth taking.
Decision
[65]The Trustees’ application is granted and orders are now issued as follows:
(a)concerning Mr Mason’s medical examination and the appointment of a litigation guardian, the orders set out above at [29]–[32];
(b)as to the strike-out application, the orders set out above at [40];
(c)in relation to opposing the application for summary judgment and interim orders, the orders set out above at [46];
(d)concerning the costs incurred in seeking a stay of the underlying proceedings, the orders set out above at [52];
(e)as to the costs incurred in opposing Mr Mason’s application to sustain his caveat, the orders set out above at [55]; and
(f)in relation to the costs of the present application for Beddoe orders, the orders set out above at [62].
[66]If the parties cannot agree on costs:
(a)The applicants may submit a memorandum on costs within 15 working days of this judgment.
(b)The respondent will then have a further 10 working days to submit a memorandum on costs in reply.
(c)Neither memorandum may exceed five pages.
[67] I expect the issue of costs can be determined on the papers but the parties may address this point in their memoranda if they wish.
Harvey J
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