GILLESPIE V GUEST HC AK CIV-2011-404-1629

GILLESPIE V GUEST HC AK CIV-2011-404-1629

Defendant failed to establish as a matter of law and on uncontested facts that he was a trustee entitled to rely conclusively on the trust deed's limitation and indemnity clauses and that the claims necessarily fall outside the irreducible core; factual disputes (appointment, capacity in which defendant acted) and...

Source-derived case information.

Citation
openlaw-bc6d81d5_a217_4924_ac1a_8f6156559ecf.pdf
Parties
Plaintiff: Bruce James Gillespie; Plaintiff: Prudence Juliet Gillespie; Plaintiff: Christopher James Gillespie; Plaintiff: Nicholas John Gillespie; Plaintiff: Jonathan Paul Gillespie; First Defendant: Andrew John Dexter Guest; Second Defendant: Viranda Property Network Limited; First Third Party: RSM Prince & Partners; Second Third Party (discontinued): Morrison Creed; Third Third Party: Graeme Hamilton Sinclair
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 April 2013
Procedural Posture
Civil (trusts/negligence/contract/fair Trading) / Interlocutory Strike Out Application (pre Trial)
Outcome
Strike-out application dismissed; leave granted to file a reply; further discovery ordered; case management telephone conference to be scheduled; costs awarded to plaintiffs on a category 2 basis
Legal Topics
Limitation of Trustee Liability, Indemnity Clauses, Affirmative Defences, Appointment of Trustees, Rectification of Deed, Dishonesty Standard, Strike Out Procedure, Reply to Defence
Trusts Fiduciary Duty Negligence Contract Fair Trading Act Civil Procedure (strike Out/discovery) Limitation of Trustee Liability Indemnity Clauses +6 more

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Parties

Bruce James Gillespie

Plaintiff

Prudence Juliet Gillespie

Plaintiff

Christopher James Gillespie

Plaintiff

Nicholas John Gillespie

Plaintiff

Jonathan Paul Gillespie

Plaintiff

Andrew John Dexter Guest

First Defendant

Viranda Property Network Limited

Second Defendant

RSM Prince & Partners

First Third Party

Morrison Creed

Second Third Party (discontinued)

Graeme Hamilton Sinclair

Third Third Party

Procedural Posture

Civil (trusts/negligence/contract/fair Trading) / Interlocutory Strike Out Application (pre Trial)

Legal Issues

  1. 1 Whether the statement of claim discloses a reasonably arguable cause of action
  2. 2 Whether the plaintiffs' failure to file a reply to the affirmative defence is fatal
  3. 3 Whether Andrew Guest was validly appointed a trustee of the Gillespie Family Trust

Ratio Decidendi

Defendant failed to establish as a matter of law and on uncontested facts that he was a trustee entitled to rely conclusively on the trust deed's limitation and indemnity clauses and that the claims necessarily fall outside the irreducible core; factual disputes (appointment, capacity in which defendant acted) and the narrow construction of exclusion clauses mean the proceeding is not bound to fail and strike-out must be dismissed; plaintiffs given leave to reply and pursue further discovery.

Court Disposition

Strike-out application dismissed; leave granted to file a reply; further discovery ordered; case management telephone conference to be scheduled; costs awarded to plaintiffs on a category 2 basis

Orders

  • Strike-out application dismissed
  • Time for filing and serving a reply to the statement of defence is extended (exact time to be fixed at further case management conference)