McCABE& ANOR v McCABE & ORS [2014] NZHC 632

McCABE& ANOR v McCABE & ORS [2014] NZHC 632

Application refused because applicants failed to show that counterclaims could more fairly or conveniently be tried separately and in advance; there is significant overlap between issues on plaintiffs' causes of action and counterclaims (notably trustees' conduct and validity of share transfers), pre-emption issues...

Source-derived case information.

Citation
[2014] NZHC 632
Parties
First Plaintiff (trustee): Bruce McCabe; Second Plaintiff (trustee): Ivan McCabe; Second Plaintiff (company): Thistle Farms Limited; First Defendant: Robert McCabe; Second Defendant: Irene Misiepo; Third Defendant: Neil McCabe; Fourth Defendant: Heather Pomfrett; Fifth Defendant: Webb Ross Johnson Trustees Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 April 2014
Procedural Posture
Civil – Trust and Company Law Claims / Interlocutory Application Under High Court Rules R 5.58 for Separate Trial of Counterclaims
Outcome
Application to have counterclaims tried separately and in advance of plaintiffs' claims refused
Legal Topics
Removal of Trustees, Distribution of Trust Assets, Separate Trials / Counterclaims, Directors' Duties, Share Pre Emption Rights
Trusts Company Law Civil Procedure Removal of Trustees Distribution of Trust Assets Separate Trials / Counterclaims Directors' Duties Share Pre Emption Rights

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 12 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Bruce McCabe

First Plaintiff (trustee)

Ivan McCabe

Second Plaintiff (trustee)

Thistle Farms Limited

Second Plaintiff (company)

Robert McCabe

First Defendant

Irene Misiepo

Second Defendant

Neil McCabe

Third Defendant

Heather Pomfrett

Fourth Defendant

Webb Ross Johnson Trustees Limited

Fifth Defendant

Procedural Posture

Civil – Trust and Company Law Claims / Interlocutory Application Under High Court Rules R 5.58 for Separate Trial of Counterclaims

Legal Issues

  1. 1 Whether counterclaims can be tried separately and in advance of plaintiffs' claims under r 5.58
  2. 2 Whether first plaintiffs should be removed as trustees for misconduct or incapacity to administer the trust
  3. 3 Whether the date of distribution was brought forward to date of Nancy's death and whether immediate distribution is appropriate

Ratio Decidendi

Application refused because applicants failed to show that counterclaims could more fairly or conveniently be tried separately and in advance; there is significant overlap between issues on plaintiffs' causes of action and counterclaims (notably trustees' conduct and validity of share transfers), pre-emption issues mean immediate distribution is not assured, and the proceedings are sufficiently advanced that a single combined hearing is the most fair and convenient course.

Court Disposition

Application to have counterclaims tried separately and in advance of plaintiffs' claims refused

Orders

  • Application refused
  • Plaintiffs entitled to costs; plaintiffs to file memorandum for costs within 14 days, applicants may file response within 14 days of service