McGOWAN and KENNINGTON v KENNINGTON [2013] NZHC 2366

McGOWAN and KENNINGTON v KENNINGTON [2013] NZHC 2366

Costs incurred by trustees in prudently protecting trust assets will be indemnified from the trust; however an indemnity can be reduced to reflect a trustee's unreasonable conduct, leading to indemnification for both trustees up to the second allocated day with a 10% reduction in the defendant's indemnity due to his...

Source-derived case information.

Citation
[2013] NZHC 2366
Parties
Plaintiff Trustee: Andrew Clifford McGowan; Plaintiff Trustee: Kirstie Anne Kennington; Defendant Trustee: Shane Allen Kennington
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 September 2013
Procedural Posture
Trusts Dispute; Urgent Application for Mandatory Interim Injunction / Costs Judgment Following Settlement on Second Allocated Hearing Day
Outcome
Costs allocated and indemnified from the trust with a reduction for defendant; no personal costs orders against either party; parties to agree quantum.
Legal Topics
Trustee Duties, Interim Injunction, Costs Indemnity, Refusal to Settle, Settlement of Trust Asset
Trusts Property Civil Procedure Costs Trustee Duties Interim Injunction Costs Indemnity Refusal to Settle +1 more

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Parties

Andrew Clifford McGowan

Plaintiff Trustee

Kirstie Anne Kennington

Plaintiff Trustee

Shane Allen Kennington

Defendant Trustee

Procedural Posture

Trusts Dispute; Urgent Application for Mandatory Interim Injunction / Costs Judgment Following Settlement on Second Allocated Hearing Day

Legal Issues

  1. 1 Whether plaintiffs' costs should be indemnified out of the Trust for protecting trust assets
  2. 2 Whether defendant's costs should be indemnified out of the Trust and whether that indemnity should be reduced for his conduct
  3. 3 Whether any party should be ordered to pay costs personally

Ratio Decidendi

Costs incurred by trustees in prudently protecting trust assets will be indemnified from the trust; however an indemnity can be reduced to reflect a trustee's unreasonable conduct, leading to indemnification for both trustees up to the second allocated day with a 10% reduction in the defendant's indemnity due to his conduct.

Court Disposition

Costs allocated and indemnified from the trust with a reduction for defendant; no personal costs orders against either party; parties to agree quantum.

Orders

  • Plaintiff trustees' costs are indemnified out of the Trust up to and including the second allocated day of the hearing.
  • Defendant's costs are indemnified out of the Trust up to and including the second allocated day of the hearing, reduced by 10% to reflect the Court's concern at his conduct.