KEAN v HAYWARD [2022] NZHC 1437

KEAN v HAYWARD [2022] NZHC 1437

Adjournment was declined because plaintiffs delayed seeking it after discovery, failed to provide persuasive affidavit evidence (including from experts) that they could not prepare by the scheduled date, and because an adjournment would cause disproportionate prejudice to trustees and other beneficiaries and impose unacceptable strain on limited court resources; instead the Court adjusted the timetable to give plaintiffs more time while preserving the September fixture.

Citation
[2022] NZHC 1437
Parties
First Plaintiff (income Beneficiary): Henry William Kean; Second Plaintiff (beneficiary): Charles Ross Souster; Defendant (trustee and Beneficiary): Julienne Marie Hayward; Defendant (trustee): Christopher Robert Darlow; Defendant (trustee Company): CHAKEAN TRUSTEE LIMITED; Cross Claim Defendant (executrix of the Estate of Judith Ann Souster): Nancy Jane Wheeler; Interested Parties / Represented Beneficiaries (including Louise Brewster, Cameron Brewster, Nick Kean, Damian Kean, Justin Kean): Six Grandchildren Beneficiaries; Interested Party (grandchild): Deane Trethewey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 June 2022
Procedural Posture
Trust Administration; Breach of Trust and Trusteeship Removal / Pre Trial: Application to Adjourn Two Week Trial and for Discovery Orders
Outcome
Plaintiffs' application to adjourn trial and for further discovery orders dismissed; timetable varied to extend exchange dates
Legal Topics
Breach of Trust, Trustee Removal, Discovery, Adjournment of Trial, Final Distribution, Costs
Trusts Estate Administration Civil Procedure Breach of Trust Trustee Removal Discovery Adjournment of Trial Final Distribution +1 more

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Parties

Henry William Kean

First Plaintiff (income Beneficiary)

Charles Ross Souster

Second Plaintiff (beneficiary)

Julienne Marie Hayward

Defendant (trustee and Beneficiary)

Christopher Robert Darlow

Defendant (trustee)

CHAKEAN TRUSTEE LIMITED

Defendant (trustee Company)

Nancy Jane Wheeler

Cross Claim Defendant (executrix of the Estate of Judith Ann Souster)

Six Grandchildren Beneficiaries

Interested Parties / Represented Beneficiaries (including Louise Brewster, Cameron Brewster, Nick Kean, Damian Kean, Justin Kean)

Deane Trethewey

Interested Party (grandchild)

Procedural Posture

Trust Administration; Breach of Trust and Trusteeship Removal / Pre Trial: Application to Adjourn Two Week Trial and for Discovery Orders

Legal Issues

  1. 1 Whether the two-week trial fixture should be adjourned
  2. 2 Whether the defendants' affidavit of documents/discovery was defective and requires amendment
  3. 3 Whether plaintiffs have shown they cannot adequately prepare for the scheduled trial

Ratio Decidendi

Adjournment was declined because plaintiffs delayed seeking it after discovery, failed to provide persuasive affidavit evidence (including from experts) that they could not prepare by the scheduled date, and because an adjournment would cause disproportionate prejudice to trustees and other beneficiaries and impose unacceptable strain on limited court resources; instead the Court adjusted the timetable to give plaintiffs more time while preserving the September fixture.

Court Disposition

Plaintiffs' application to adjourn trial and for further discovery orders dismissed; timetable varied to extend exchange dates

Orders

  • Application to adjourn the trial and for further discovery orders dismissed
  • Plaintiffs to exchange their evidence, witness statements and proposed evidence-in-chief hyperlinked to trial documents, proposed trial bundle of exhibits and proposed chronology by 1 August 2022