Triezenberg v Mason - [2018] NZHC 186

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001688

[2018] NZHC 186

BETWEEN VICKI ANN TRIEZENBERG and PAUL MORLEY DODD
Plaintiffs

AND

ALEXANDER CHARLES MASON

First Defendant

WENDY ANNE MASON

Second Defendant

Hearing: (On the papers)

Judgment:

19 February 2018

JUDGMENT OF VENNING J

APPLICATION FOR PAYMENT OF LEGAL EXPENSES

This judgment was delivered by me on 19 February 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Wilson McKay, Auckland
Gregory J Thwaite, Auckland

Copy to: J McGuigan, Auckland

TRIEZENBERG & ANOR v MASON [2018] NZHC 186 [19 February 2018]

[1]The Registrar has referred this file to me as duty Judge.

[2] In the substantive proceedings the plaintiffs, who are trustees of the Mamari Trust and Mamari Trust No 2 seek orders under the Trustee Act 1956 (the Act) removing the first and second defendants from their position as trustee (in the case of Alexander removal as trustee of both trusts, and in the case of Wendy removal from her position as trustee of the Mamari Trust). The plaintiffs also seek directions from the Court related to the payment for care of Wendy and orders validating other steps taken by them as trustees.

[3] The current application before the Court for determination is the plaintiffs’ application for orders making funds held by the Mamari No 2 Trust available to the plaintiffs and defendants for payment of counsel and solicitors’ fees and disbursements, or in the alternative that funds separately held in the names of the defendants on deposit with a sharebroker, are made available for the same purpose.

[4] The application has been before the Court on a number of occasions. Counsel have filed a number of memoranda on this application and related issues. Counsel are now agreed that the application can be dealt with on the papers, although Mr Thwaite’s memorandum says the waiver is on the basis that no party should receive a sum from either trust for the conduct of the litigation but if the plaintiffs are granted a sum Alexander should be paid a similar sum.

[5] The starting point is that a trustee may reimburse him or herself or pay or discharge out of the trust property all expenses reasonably incurred in or about the execution of the trusts or powers of the trust.1 In the present case the trust deed also provides for the trustees to be indemnified for any liability (costs) arising out of or in connection with the trustee acting as a trustee. The clause is broad enough to cover legal expenses properly incurred.

[6] Section 71 of the Act may also apply. It enables the Court to order costs and expenses of and incidental to any application for an order under the Act or of and

1 Trustee Act 1956, s 38(2).

incidental to any such order to be paid in such manner and by such persons as the Court may…

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 [2018] NZHC 186
Case: [2018] NZHC 186
Decision Date: 19 February 2018

CaseChat Overview and Summary

The High Court of New Zealand considered an application for the payment of legal expenses in the case of Triezenberg v Mason. The plaintiffs, Vicki Ann Triezenberg and Paul Morley Dodd, who are trustees of the Mamari Trust and Mamari Trust No 2, sought orders for the removal of the first and second defendants from their positions as trustees. The plaintiffs also sought directions from the Court regarding the payment for the care of Wendy and orders validating other steps taken by them as trustees. The current application before the Court was for orders making funds held by the Mamari No 2 Trust available to the plaintiffs and defendants for payment of counsel and solicitors’ fees and disbursements.

The legal issues the Court had to decide were whether the plaintiffs were entitled to reimbursement for the legal expenses they incurred in administering the trusts, and if so, whether the defendants should also be reimbursed. The Court considered the principles of reimbursement for expenses properly incurred in the execution of the trusts and the statutory provisions allowing the Court to order costs and expenses to be paid. The Court noted that the burden of proving unreasonableness fell on the party alleging it, and that the expenses must be necessarily incurred in the interests of the trust and reasonable in extent.

The Court decided that on the basis of the evidence before it, the plaintiff trustees had acted reasonably in initiating and pursuing these proceedings. The Court made an order that the funds held on deposit with the ANZ Bank under the name of the Mamari No 2 Trust were to be made available to the plaintiffs and defendants for the payment of their respective counsel and instructing solicitors’ outstanding fees and disbursements and for ongoing fees and disbursements in these proceedings in the first instance. The Court declined to make an order in the terms sought by Mr Thwaite that the first defendant have access to a “similar sum”. The Court reserved the issue of 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. The Court made no order for costs on the current application.

Orders