Triezenberg v Mason

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.