Triezenberg v Mason - [2017] NZHC 2271

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1688 [2017] NZHC 2271

BETWEEN
VICKI ANN TRIEZENBERG AND

PAUL MORLEY DODD Plaintiffs

AND

ALEXANDER CHARLES MASON First Defendant

WENDY ANNE MASON Second Defendant

Hearing: 11 September 2017

Counsel:

P Skelton QC and C McKay for Plaintiffs
G J Thwaite for First Defendant
No appearance for Second Defendant

Judgment:

19 September 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 19 September 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Wilson McKay, Auckland

TRIEZENBERG AND DODD v MASON [2017] NZHC 2271 [19 September 2017]

[1] This case is about a dispute between trustees. It is due to be heard on 31

October 2017. Mr Thwaite for the first defendant sought and obtained a subpoena on

28 August 2017 in relation to the plaintiffs’ trial counsel, Janna McGuigan. The plaintiffs immediately sought to have that subpoena set aside and the matter was brought on for urgent hearing.

[2] Mr Thwaite did not file a notice of opposition to the plaintiffs’ application and indicated at the hearing that he no longer required the subpoena as, it appears, he had achieved his objective, namely the removal of the plaintiffs’ solicitor on the record, who was also the lawyer for the two trusts this proceeding concerns.

[3] In any event, I set aside the subpoena and reserved my position on costs, the plaintiffs having sought costs on an indemnity basis.

[4] This is my judgment on both matters.

Background

[5] The first and second plaintiffs, Vicki Triezenberg (Vicki) and Paul Dodd (Paul), and the first defendant, Alexander Mason (Alexander), are trustees of the Mamari Trust and Mamari (No 2) Trust. Wendy Mason, the second defendant, is also a trustee of the Mamari Trust.

Mamari Trust

[6] Alexander and Wendy were married on 21 November 1959 and have three children, including Vicki, the first plaintiff. In 1994 Alexander and Wendy settled the Mamari Trust to provide for themselves during their lifetime and to provide a capital distribution to each of their three children when they died.

[7] The trustees of the Mamari Trust are empowered to apply the Mamari Trust funds towards the personal support, maintenance, comfort, education, advancement in life or otherwise for the benefit of such of the beneficiaries as may from time to time be living, including to the exclusion of other beneficiaries up to the date of

distribution. The trustees are also generally empowered to manage the trust funds. The power to appoint and remove trustees is held jointly by Wendy and Alexander. Trustee decisions can be made by majority, but a trustee who is also a beneficiary may not exercise powers vested in them for their own benefit.

[8] The Mamari Trust holds a number of properties and had significant cash investments. At the time Alexander and Wendy settled a further trust in May 2013, the Mamari Trust had…

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 [2017] NZHC 2271
Case: [2017] NZHC 2271
Decision Date: 19 September 2017

CaseChat Overview and Summary

This case concerns a dispute between trustees, Vicki Triezenberg and Paul Dodd, and Alexander Mason over the Mamari Trust and Mamari (No 2) Trust. The first and second plaintiffs, Vicki and Paul, are trustees of both trusts, while Alexander and Wendy Mason, the first and second defendants, are also trustees of the Mamari Trust. The dispute centres on the management of the trusts and the care of Wendy, who suffers from degenerative dementia. The plaintiffs commenced proceedings seeking to address the trusts' inability to function due to Alexander's interference, while Alexander counterclaims that Vicki's power of attorney was invalid and that Wendy's funds are being misused for the conduct of the proceedings.

The legal issues before the court were whether the subpoena issued by Alexander's counsel, Mr Thwaite, was appropriate and whether the plaintiffs were entitled to costs on an indemnity basis. The subpoena sought information about invoices rendered by the plaintiffs' trial counsel, Janna McGuigan, and to establish a conflict of interest on the part of the plaintiffs' solicitors, who were also the trust's solicitors. The plaintiffs sought to have the subpoena set aside on the basis that Ms McGuigan could not give helpful or relevant evidence, was bound by privilege, and was ineligible to give evidence under the Evidence Act 2006.

The court found that the subpoena was improperly issued without first seeking leave from the court to call trial counsel as a witness, as required by section 72 of the Evidence Act. The court held that the threshold for calling trial counsel as a witness is high and that the subpoena process was a serious abuse of process. The court also found that Ms McGuigan could not have provided helpful evidence on the pleaded issues. The court set aside the subpoena and awarded costs to the plaintiffs on an indemnity basis, holding that Mr Thwaite acted improperly and unnecessarily by proceeding with the subpoena without first seeking leave from the court. The court relied on rule 14.6(4)(a) of the High Court Rules, which provides for an indemnity award when a party has acted improperly or unnecessarily.

The court ordered that the subpoena be set aside and that Mr Thwaite pay the plaintiffs' costs on an indemnity basis, which amounted to $6,065.00. The court noted that the costs incurred were reasonable in the circumstances and that the indemnity award was appropriate given Mr Thwaite's improper and unnecessary actions.

Orders