Lusty & Ors v Thorburn & Ors [2021] NZHC 2045

Lusty & Ors v Thorburn & Ors [2021] NZHC 2045

Recall dismissed: the judgment sufficiently addressed the pleaded issues. The court held the lease was invalid to the extent it conflicted with the Thorburn Trust deed and that granting specific performance would frustrate the trust's charitable purpose; that conclusion precluded any entitlement to damages for breach of contract or the need for the interpretative declarations sought. The absence of explicit usage of the words 'damages' or 'declaration' did not amount to a failure to determine issues and did not satisfy the high threshold for recall under r 11.9.

Citation
[2021] NZHC 2045
Parties
Plaintiff / Executor: Āileen Beryl Lusty; Plaintiff / Executor: Ronald Hunt Lusty; Plaintiff / Executor: Warwick James Roland Browne; Defendant / Trustee: Craig Maxwell Thorburn; Defendant / Trustee: Carly Eve Thorburn
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 August 2021
Procedural Posture
Application for Specific Performance and Declaratory Relief / Application to Recall Judgment Under R 11.9 High Court Rules Following Judgment Dated 15 July 2021
Outcome
Application to recall dismissed; costs awarded to the trustees on the recall application
Legal Topics
Specific Performance, Damages for Breach of Contract, Lease Renewal, Trust Deed Interpretation, Recall of Judgment, Declaratory Judgments
Contract Law Trusts and Fiduciary Obligations Equity Civil Procedure Declaratory Relief Specific Performance Damages for Breach of Contract Lease Renewal +3 more

Case Brief

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Parties

Āileen Beryl Lusty

Plaintiff / Executor

Ronald Hunt Lusty

Plaintiff / Executor

Warwick James Roland Browne

Plaintiff / Executor

Craig Maxwell Thorburn

Defendant / Trustee

Carly Eve Thorburn

Defendant / Trustee

Procedural Posture

Application for Specific Performance and Declaratory Relief / Application to Recall Judgment Under R 11.9 High Court Rules Following Judgment Dated 15 July 2021

Legal Issues

  1. 1 Whether plaintiffs entitled to specific performance of lease
  2. 2 Whether plaintiffs entitled alternatively to damages for breach of contract
  3. 3 Whether declaratory relief should be granted interpreting the lease and caveat against the Thorburn Trust deed

Ratio Decidendi

Recall dismissed: the judgment sufficiently addressed the pleaded issues. The court held the lease was invalid to the extent it conflicted with the Thorburn Trust deed and that granting specific performance would frustrate the trust's charitable purpose; that conclusion precluded any entitlement to damages for breach of contract or the need for the interpretative declarations sought. The absence of explicit usage of the words 'damages' or 'declaration' did not amount to a failure to determine issues and did not satisfy the high threshold for recall under r 11.9.

Court Disposition

Application to recall dismissed; costs awarded to the trustees on the recall application

Orders

  • Recall application dismissed
  • Trustees entitled to costs on the recall application on the same basis as set out at [91] of the earlier judgment (Lusty v Thorburn [2021] NZHC 1774)