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Costs

This category contains 17 posts

The distinction between discovery and disclosure

The distinction between discovery and disclosure can appear esoteric and academic.  However, as identified in Hoeberechts v Sprott each serves a different function, the purpose of which warrants the relevant reflection.  The temptation, whichever is being sought is overreach.  Importantly less truly can be more, and more, can result in so much less that forward propulsion … Continue reading

Barely there

Bare trusts are not uncommon and can arise intentionally or otherwise, as well as by an express declaration of trust, whether written or oral.   However, the nomenclature can extend to a range of circumstances where it is necessary to consider the nature of the trust and, if a bare trust, the bare trustee’s duties. In … Continue reading

Equitable lien: support for a caveat

The background of this matter is set out at [1], [2], [3] and [4] of the High Court judgment as follows: [1] The plaintiff, Camray Farms Ltd (Camray), and the second defendant, the Gordon Moore Trust (GMT), each claim priority to the proceeds of sale of properties in Ohaupo known as the Neighbouring Property and … Continue reading

Balance of convenience is best interest of beneficiaries

  The proceedings in McLaughlin v McLaughlin relate to a dispute between the beneficiaries and trustees of the Ashley Trust (the Trust) and whether there should be an interim injunction to prevent the trustees from proceeding with the next stage of a development of trust property. By way of background see A little light on Beddoe … Continue reading

What do I want?

Bean v Bean is a an application to strike out a Family Protection Act 1955 (FPA) claim on the basis that it has no prospect of success.  The bar is set high for such a claim.  While any such claim will depend on its own facts, Bean v Bean is an interesting study of the procedural and tactical aspects … Continue reading

Between a rock and a hard place

Mr Pratley was a Court appointed executor and trustee of two estates.  At the time of his appointment a 2-day hearing had already been set down to determine a claim against the prior executor and trustee.  The time-line is as follows: Mr Pratley’s appointment as executor and trustee – 20 October 2015 21 October 2015 Mr … Continue reading

Costs bite when trustees fight

Trustees fall out, sometimes to the point where a working relationship is no longer possible. Applications to remove trustees are becoming an increasingly common occurrence. So, should trustees fight attempts to remove them? When is it appropriate to do so, and when not? And what are the potential consequences of misjudged opposition? The recent decision … Continue reading

Disclosure to the trustees

Disclosure of trust information to beneficiaries is commonly considered.  However, what of disclosure to the trustees? Consider the case of Daniel v Cundall.  In this case Mr Daniel and Mr Cundall were the trustees of a trust.  Mr Daniel, a lawyer, says that he left the day-to-day trust administration to Mr Cundall. After a long period of … Continue reading

Undocumented loans 

The informality associated with loans between family members can lead to later disputes when different interpretations of the transaction emerge. Warin v Warin is a case in point. In that case $367,903.90 was advanced to the Warins’ daughter. The loan comprised: $100,000 that was initially secured by mortgage in 1997 $141,749.70 that was loaned to … Continue reading

Ouch

In Davis v White (see You aren’t my beneficiary – are you??) a trust was found to have failed by reason of uncertainty. The second hearing of the matter related to costs and is a sobering tale for trustees. Mrs White who incurred significant costs (AUD 40,893 and $85,369.50 in New Zealand, plus disbursements) said that the proceedings could … Continue reading

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