Triezenberg v Mason

[2019] NZHC 3019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1688

[2019] NZHC 3019

UNDER

Part 18 of the High Court Rules Trustee Act 1956

BETWEEN

VICKI ANN TRIEZENBERG and PAUL MORLEY DODD

Plaintiffs

AND

ALEXANDER CHARLES MASON

First Defendant

WENDY ANNE MASON

Second Defendant

Hearing:	On the papers
Counsel:	VTM Bruton QC for plaintiffs GJ Thwaite for defendants
Judgment	19 November 2019

JUDGMENT (NO 4) OF FITZGERALD J

[As to quantification of “Excluded Costs”]

This judgment was delivered by me on 19 November 2019 at 3:30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Wilson McKay, Auckland

GJ Thwaite, Auckland

Triezenberg v Mason [2019] NZHC 3019 [19 November 2019]

Introduction

[1]    I have delivered three earlier judgments in these proceedings, the substance of which concerned disputes between the trustees of two family trusts, and whether the first defendant, Mr Mason, ought to be removed as a trustee.1 This followed a spectacular falling out between Mr Mason and the plaintiffs, in the context of broader family disputes. In my judgment dated 17 January 2019, I upheld the plaintiffs’ claims and removed Mr Mason as a trustee.2 I found Mr Mason to have been the primary source of the issues and discord between the parties.

[2]    In a judgment delivered during the interlocutory phases of these proceedings, Venning J had ordered that the parties’ legal costs of the proceedings fell within the scope of a trustee indemnity in the trust deed and thus could be paid out of trust funds “in the first instance”.3 Venning J reserved, however, the issue of the reasonableness of the quantum of the costs incurred and the steps taken by all parties, for determination and adjustment if necessary following the substantive hearing.

[3]    Pursuant to that ruling, the plaintiffs were periodically invoiced legal fees by their solicitors and counsel, which were duly paid from trust funds. Mr Mason’s counsel, Mr Thwaite, however, did not render any further invoices to Mr Mason following Venning J’s decision and prior to trial. Rather, one invoice for all time attendances during 2018, up to and including the September 2018 hearing, was rendered by counsel to Mr Mason after the substantive hearing. That invoice was not, therefore, paid “on the way through” the proceedings (given it was not issued until after trial).

[4]    Following my judgment on the substantive claim, the plaintiffs submitted that, given Mr Mason’s conduct as trustee and the findings made in my judgment, he ought not benefit from the trustee indemnity at all, and thus no costs ought to be paid out of trust funds to him in relation to legal  fees.  In  my second  judgment  delivered  on 30 April 2019, I found that as a matter of principle, Mr Mason could take the benefit

1      The plaintiffs are Mr Mason’s fellow  trustees.  Ms Triezenberg,  the  first-named  plaintiff,  is Mr Mason’s daughter. Mr Dodd, the second-named plaintiff, is the family accountant.

2      Triezenberg…