Triezenberg v Mason - [2019] NZHC 2125

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1688

[2019] NZHC 2125

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 and JM Matheson for plaintiffs GJ Thwaite for defendants

Judgment:

28 August 2019

Recalled:

6 September 2019

Reissued:

6 September 2019

JUDGMENT (NO. 3) OF FITZGERALD J

[As to the reasonableness of quantum costs]

This judgment was delivered by me on 28 August 2019 at 11am, 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 2125 [28 August 2019]

Introduction

[1] By a judgment delivered on 17 January 2019 (January Judgment), I made orders removing Mr Mason (the first defendant) and his wife (the second defendant) as trustees of two family trusts (the Trusts).1 There was no dispute Mrs Mason ought to be removed; she suffers from advanced dementia. Mr Mason, however, strongly disputed his removal.

[2] The plaintiffs (Mr Mason’s daughter and accountant respectively), being the other trustees of the Trusts, sought Mr Mason’s removal due to the serious breakdown in their relationship with him, both personally and in their roles as trustees. The breakdown resulted in significant dysfunction in the trusts and unsustainable dissipation of trust assets. I found that much of this was due to Mr Mason’s actions and attitudes. In a subsequent judgment delivered on 30 April 2019 (April Judgment), I also amended the trust deed provisions concerning the power of appointment of new trustees, to vest that power in the continuing trustees.2

[3] In my April Judgment, I also made orders as to costs. I ordered that Mr Mason pay the plaintiffs’ costs on a 2B basis, with the difference between the scale costs and the plaintiffs’ actual costs to be met by the assets of one of the Trusts (the Mamari No. 2 Trust). The more contentious issue was whether Mr Mason’s costs liability to the plaintiffs, and his own legal costs, also ought to be met out of trust assets (pursuant to an indemnity contained in the Mamari No. 2 Trust deed (Trustee Indemnity) and/or pursuant to the statutory indemnity contained in s 38(2) of the Trustee Act 1956 (the Act). Because I did not consider it unreasonable for Mr Mason to have defended the action to remove him as trustee (despite the outcome being that he was removed), I made an order that Mr Mason was entitled to be indemnified under the Trustee Indemnity for his costs in relation to these proceedings.

[4] There remained, however, the issue of the quantum of costs to be subject to indemnification. If the parties could not agree, I reserved leave to any party to file a

1 Triezenberg v Mason [2019] NZHC 14 [January Judgment].
2 Triezenberg…

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 Triezenberg v Mason

Details

AGLC: Triezenberg v Mason [2019] NZHC 2125
Case: [2019] NZHC 2125
Decision Date: 28 August 2019

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine the reasonableness of the quantum of legal costs incurred by the parties in the proceedings between Vicki Ann Triezenberg and Paul Morley Dodd, as plaintiffs, and Alexander Charles Mason and Wendy Anne Mason, as defendants. The primary dispute was over the costs to be borne by the Mamari No. 2 Trust. The plaintiffs sought to exclude certain costs they believed to be unreasonable or improperly incurred by Mr Mason. Mr Mason, on the other hand, contended that all his costs should be reimbursed from trust assets. The court had to decide whether the costs associated with specific actions taken by Mr Mason, such as issuing a subpoena and preparing certain deeds, were reasonable and properly incurred, and whether they fell within the scope of the indemnity provisions.

The court found that certain costs incurred by Mr Mason were not reasonably or properly incurred. These included costs related to the issuance of a subpoena to the plaintiffs' counsel, which the court deemed unnecessary and improper. Additionally, costs associated with deeds that Mr Mason purported to execute to remove the plaintiffs as trustees and appoint his son in their place were not incurred in his role as trustee but as an appointer under the trust deeds. Consequently, these costs were excluded from reimbursement under the Trustee Indemnity. The court also noted that some of the attendances billed by Mr Mason's counsel might not relate to the current proceedings, but given the materials available, it was not possible to determine the exact quantum of these costs without further detailed analysis.

In conclusion, the court ordered that certain costs incurred by Mr Mason be excluded from reimbursement from the Mamari No. 2 Trust's assets. An interim payment of $80,000 was to be made to Mr Mason from the trust to cover his outstanding legal costs, with the understanding that further steps would be taken to quantify the excluded costs accurately. The court encouraged the parties to engage in constructive discussions to reach an agreement on the final quantification of these costs.

Orders