MACNAMARA v MACNAMARA [2021] NZHC 3141

MACNAMARA v MACNAMARA [2021] NZHC 3141

The Court declined to vary the consent orders or make any in‑principle allocation of trustees' costs at the application hearing because there was an inadequate evidentiary basis; the trustees were directed to file a costs memorandum and the substantive determinations were deferred to a timetabled trial so the Court can consider the trustees' memorandum and hear submissions before deciding whether variation is in the interests of justice; costs reserved.

Citation
[2021] NZHC 3141
Parties
Applicant/plaintiff: Sheryl Ann Macnamara; Respondent/defendant: Noel James Macnamara; Trustees/second and Third Defendants: Macnamara Home Trust and Macnamara Family Trust (trustees: Sheryl Ann Macnamara; Noel James Macnamara; Graham Lincoln Wilfred Craig)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 November 2021
Procedural Posture
Trusts Dispute; Variation of Consent Orders; Property Settlement and Trust Winding Up / Application for Further Directions and Variation of Consent Orders (pre Trial); Decision Deferred to Trial
Outcome
No orders made on the application; application deferred to trial for determination in accordance with timetable directions; costs reserved
Legal Topics
Variation of Consent Orders, Trust Winding Up and Resettlement, Allocation of Trustees' Costs, Occupancy Rent for Former Family Home, Accounting for Company Withdrawals (oneheat)
Trusts Property Family Law Civil Procedure Costs Variation of Consent Orders Trust Winding Up and Resettlement Allocation of Trustees' Costs +2 more

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Parties

Sheryl Ann Macnamara

Applicant/plaintiff

Noel James Macnamara

Respondent/defendant

Macnamara Home Trust and Macnamara Family Trust (trustees: Sheryl Ann Macnamara; Noel James Macnamara; Graham Lincoln Wilfred Craig)

Trustees/second and Third Defendants

Procedural Posture

Trusts Dispute; Variation of Consent Orders; Property Settlement and Trust Winding Up / Application for Further Directions and Variation of Consent Orders (pre Trial); Decision Deferred to Trial

Legal Issues

  1. 1 Whether the Court should vary consent orders to permit unequal allocation of trustees' costs against one beneficiary
  2. 2 Whether the Court should order trustees to deduct specified amounts (rental and company withdrawals) from one party's resettled trust share
  3. 3 Whether the trustees' costs attributable to one party's conduct can be determined by the trustees or must be judicially determined

Ratio Decidendi

The Court declined to vary the consent orders or make any in‑principle allocation of trustees' costs at the application hearing because there was an inadequate evidentiary basis; the trustees were directed to file a costs memorandum and the substantive determinations were deferred to a timetabled trial so the Court can consider the trustees' memorandum and hear submissions before deciding whether variation is in the interests of justice; costs reserved.

Court Disposition

No orders made on the application; application deferred to trial for determination in accordance with timetable directions; costs reserved

Orders

  • No substantive variation of the Consent Orders made at this hearing
  • Directions issued (by minute of 29 October 2021) for a timetable leading to a trial to determine outstanding issues