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Procedure

With increasing numbers of trust matters coming before the courts, it is important to consider the procedural considerations and anomalies that apply to trust related matters.

Determination of pre-trial questions

Trustees can be joined to proceedings where the court has jurisdiction over the trustees and the court decides that the discretion available to the court should be exercised.   See HCR 4.56(1)(b)(i) and (ii). 

Separately, addressing pre-trial questions can result in the disposal of proceedings, but can be ordered even if that is not a potential income. See HCR 10.15. As noted in Percy v Percy [2020] NZHC :

[58] McGechan on Procedure, in its commentary suggests the following criteria to be taken into account when determining whether to order a split trial. That list of criteria is based on Turners & Growers Ltd v Zespri Group Ltd HC Auckland CIV-2009-404-4392, 5 May 2010 and Karam v Fairfax NZ Ltd [2012] NZHC 1331 as follows:


(a) the likelihood of delay in finally resolving the proceedings;
(b) the probable length of hearings if there is a split trial;

(c) whether a decision one way or the other on the separate questions would end the litigation;
(d) the impact on the length of any subsequent hearing;
(e) a balancing of the advantages to the parties and the public interest in shortening the litigation against any disadvantages asserted by the parties opposing a split trial;
(f) demarcation difficulties in defining issues to be addressed at the first trial and those left for the second;
(g) resulting difficulties of issue estoppel;
(h) inadvertent disqualification of a judge who has expressed views at the first trial on matters for decision at the second trial;
(i) inadvertent findings at the first trial upon matters that are for full evidence and argument at the second hearing;
(j) the need to recall witnesses at the second hearing;
(k) the duplication of time involved in the Court and counsel coming up to speed for the second hearing;
(l) the prospect of multiple trials;
(m) the need for a second round of discovery and other interlocutories and amended pleadings following the first trial; and
(n) rostering difficulties in ensuring the same Judge is available for the second hearing.

As noted in Percy at [66], the end result is a reality check:

“[66] The proceedings would, in my view, not likely be brought to an end. It is unlikely there will be much timesaving gained by dealing with only part of the matters in issue at a pre-trial determination. There are likely to be delays, as I said, resulting from the possible appeal of pre-trial determinations. Given the longevity of the dispute, including the unsuccessful attempts at settlement and the acrimonious exchanges between the parties, the indications are that the proceedings will continue on those lines. It is better that all the allegations and all the disputes are dealt with at once. I also take to heart the prior judicial warnings against splitting the trials.”

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