STRATFORD v MOSES (2nd Ruling) [2021] NZHC 3473

STRATFORD v MOSES (2nd Ruling) [2021] NZHC 3473

The Court ordered Lynn be joined personally under r 4.56 because personal relief was sought against her; awarded costs to Lynn on the strike-out application (2B scale less 25%); required an undertaking in damages within five working days for interlocutory preservation orders; scheduled the interlocutory hearing for 8 February 2022 subject to agreement on interim payment of Mr Vance's fees (effectively an interim Beddoe arrangement); and issued a detailed timetable for filing evidence and submissions, while deferring determination of admissibility and cross-examination applications until formal applications or memorandum filings were made.

Citation
[2021] NZHC 3473
Parties
Plaintiff (beneficiary and Former Trustee): Brian George Stratford; First Defendant; Second Defendant (trustee): Juliet Moses; First Defendant (trustee): David Stuart Vance; First Named First Defendant (trustee) and Joined Personally as Third Defendant: Lynn Stratford
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 December 2021
Procedural Posture
Trust Dispute Under the Trusts Act 2019 (interlocutory Applications) / Interlocutory/case Management Stage Prior to Substantive Hearing (directions and Scheduling)
Outcome
Procedural orders granted: joinder of Lynn personally; costs awarded to Lynn on strike-out; undertaking in damages required; hearing and timetable fixed; interim Beddoe arrangement to be confirmed or hearing not to proceed.
Legal Topics
Removal and Appointment of Trustees, Interim Trustees and Injunctive Relief, Beddoe Orders (trustee Costs), Undertakings in Damages, Joinder, Costs on Interlocutory Applications, Admissibility of Affidavit Evidence, Cross Examination of Deponents, Service and Case Management Directions
Trusts Equity Civil Procedure Evidence Removal and Appointment of Trustees Interim Trustees and Injunctive Relief Beddoe Orders (trustee Costs) Undertakings in Damages +5 more

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Parties

Brian George Stratford

Plaintiff (beneficiary and Former Trustee)

Juliet Moses

First Defendant; Second Defendant (trustee)

David Stuart Vance

First Defendant (trustee)

Lynn Stratford

First Named First Defendant (trustee) and Joined Personally as Third Defendant

Procedural Posture

Trust Dispute Under the Trusts Act 2019 (interlocutory Applications) / Interlocutory/case Management Stage Prior to Substantive Hearing (directions and Scheduling)

Legal Issues

  1. 1 Whether Lynn should be joined in her personal capacity
  2. 2 Costs consequences of a successful strike out interlocutory application
  3. 3 Whether an undertaking in damages is required for interim injunctive relief

Ratio Decidendi

The Court ordered Lynn be joined personally under r 4.56 because personal relief was sought against her; awarded costs to Lynn on the strike-out application (2B scale less 25%); required an undertaking in damages within five working days for interlocutory preservation orders; scheduled the interlocutory hearing for 8 February 2022 subject to agreement on interim payment of Mr Vance's fees (effectively an interim Beddoe arrangement); and issued a detailed timetable for filing evidence and submissions, while deferring determination of admissibility and cross-examination applications until formal applications or memorandum filings were made.

Court Disposition

Procedural orders granted: joinder of Lynn personally; costs awarded to Lynn on strike-out; undertaking in damages required; hearing and timetable fixed; interim Beddoe arrangement to be confirmed or hearing not to proceed.

Orders

  • Lynn Stratford is joined in her personal capacity as the third defendant under High Court Rules r 4.56
  • Costs on the strike-out application (dated 1 December 2021) are awarded in favour of Lynn on a 2B basis less 25% (recorded as withdrawn)