BRODRICK v BRODRICK [2015] NZHC 1038

BRODRICK v BRODRICK [2015] NZHC 1038

Although the trustees ultimately achieved the transfer by agreement, the defendant was justified in withholding signature until she received an indemnity against trust liabilities; the Associate Judge had taken into account an irrelevant consideration (the manner of removal) but, on balance, no order as to costs of the underlying proceeding was warranted; the application for review was dismissed and the respondent awarded costs of the review.

Citation
[2015] NZHC 1038
Parties
Plaintiff (trustee): Dale Brodrick; Plaintiff (trustee): Alexander Brodrick; Defendant: Maria Brodrick
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 May 2015
Procedural Posture
Trusts — Vesting Order Under Trustee Act 1956 / Application for Review of Associate Judge's Costs Decision
Outcome
Application for review dismissed; respondent wins the review
Legal Topics
Vesting Order, Removal of Trustee, Discontinuance and Costs, Indemnity
Trusts Civil Procedure Costs Property Vesting Order Removal of Trustee Discontinuance and Costs Indemnity

Case Brief

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Parties

Dale Brodrick

Plaintiff (trustee)

Alexander Brodrick

Plaintiff (trustee)

Maria Brodrick

Defendant

Procedural Posture

Trusts — Vesting Order Under Trustee Act 1956 / Application for Review of Associate Judge's Costs Decision

Legal Issues

  1. 1 Whether plaintiffs who discontinued the proceeding are entitled to costs
  2. 2 Whether the presumption that discontinuance amounts to judgment for the defendant was displaced
  3. 3 Whether the Associate Judge took into account an irrelevant consideration (peremptory removal of trustee) in awarding costs

Ratio Decidendi

Although the trustees ultimately achieved the transfer by agreement, the defendant was justified in withholding signature until she received an indemnity against trust liabilities; the Associate Judge had taken into account an irrelevant consideration (the manner of removal) but, on balance, no order as to costs of the underlying proceeding was warranted; the application for review was dismissed and the respondent awarded costs of the review.

Court Disposition

Application for review dismissed; respondent wins the review

Orders

  • Application for review dismissed.
  • Respondent awarded costs of the review on a category 2B basis together with disbursements as fixed by the Registrar.