Cooke v Butler, which relates amongst other things to a dispute regarding whether the sum of $100,000 paid to a beneficiary was a loan, considers the issues of common interest privilege and the practical parameters of disclosure and discovery in the context of litigation between trustees and a beneficiary. As stated at [15]:
Associate Judge Lester was invited to accept McCallum v McCallum[1]as authority for the proposition that disclosure principles are relevant in the context of discovery. Associated Judge Lester did not accept that this was what Associate Judge Bell determined in McCallum, noting as set out on the next page at [17] to [19] that:
With respect to legal information requested Associated Judge Lester considered the parameters of the joint interest exception by reference to Lambie Trustee Limited v Addleman stating as follows:
Relevantly, Lambie related to an application for disclosure, not discovery (see It’s mine said the trustee, all mine). The applicable principles are different although both may be relevant in the context of a litigated matter. The following comments at [55] to [57] provide useful guidance regarding the relevant time-lines:
The proposition that different principles apply regarding the joint interest exception depending on whether the proceedings are brought by a beneficiary or a trustee was rejected at [58] to [60] as follows:
As noted by Associate Judge Lester, the joint interest privilege is not easily lost. However, the point at which it is lost, will not always be entirely obvious. See [65], [66] and [69]:
…
Cooke v Butler highlights the importance to trustees and beneficiaries as to when and how hostile steps are or should be signaled and the timing implications.
For further insight regarding disclosure see Trust Series 2022 – Disclosure, which is being presented by Vicki Ammundsen.
References:
- Cooke v Butler [2022] NZHC 2687
- Lambie Trustee Limited v Addleman [2021] NZSC 54
[1] [2019] NZHC 1925
Matters of Trust 
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