KAIN AND ORS V HUTTON AND ORS SC 40/2007

KAIN AND ORS V HUTTON AND ORS SC 40/2007

Leave was granted as to proposed grounds 1 and 2 but refused as to proposed grounds 3, 4 and 5 because the restitutionary/account of profits ground was not properly pleaded or supported by evidence and therefore granting leave would not be justified in the interests of justice under s13(1) of the Supreme Court Act 2003; grounds 4 and 5 were refused because they lacked sufficient general or public importance or commercial significance and did not raise a real risk of substantial miscarriage of justice.

Citation
SC 40/2007
Parties
First Appellant: Georgina Kain; First Appellant: George Harry Couper Kain; First Appellant: George Charles Kain; Second Appellant: George Thomas Carlton Kain; First Appellant: George Michael Kain; First Respondent: Jonathon Rhodes Hutton; Second Respondent: William Alexander Xavier Couper; Third Respondent: Annette Elizabeth Couper; Fourth Respondent: Wayne Keith Startup; Fifth Respondent: George Thomas Kain; Sixth Respondent: Mary Hutton
Court
Supreme Court
Jurisdiction
New Zealand
Judgment Date
20 November 2007
Procedural Posture
Application for Leave to Appeal to the Supreme Court / Leave Application Heard and Decided by the Supreme Court
Outcome
Leave to appeal granted as to proposed grounds 1 and 2; leave refused as to proposed grounds 3, 4 and 5; costs reserved.
Legal Topics
Resettlement of Trust, Appointment of Trust Assets, Account of Profits, Leave to Appeal, Supreme Court Act S13(1)
Trusts Restitution Civil Procedure Appeal Equity Resettlement of Trust Appointment of Trust Assets Account of Profits +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 1 Party arguments 2
Sign in to unlock

Parties

Georgina Kain

First Appellant

George Harry Couper Kain

First Appellant

George Charles Kain

First Appellant

George Thomas Carlton Kain

Second Appellant

George Michael Kain

First Appellant

Jonathon Rhodes Hutton

First Respondent

William Alexander Xavier Couper

Second Respondent

Annette Elizabeth Couper

Third Respondent

Wayne Keith Startup

Fourth Respondent

George Thomas Kain

Fifth Respondent

Mary Hutton

Sixth Respondent

Procedural Posture

Application for Leave to Appeal to the Supreme Court / Leave Application Heard and Decided by the Supreme Court

Legal Issues

  1. 1 Whether the Court of Appeal was correct to uphold the resettlement of the balance of the old Mangaheia trust on the new Mangaheia trust
  2. 2 Whether the Court of Appeal was correct to uphold the appointment of the shares in Ponui Station to Mrs A E Couper
  3. 3 Whether leave should be granted in relation to a restitutionary claim for account of profits given absence of specific pleading and evidence

Ratio Decidendi

Leave was granted as to proposed grounds 1 and 2 but refused as to proposed grounds 3, 4 and 5 because the restitutionary/account of profits ground was not properly pleaded or supported by evidence and therefore granting leave would not be justified in the interests of justice under s13(1) of the Supreme Court Act 2003; grounds 4 and 5 were refused because they lacked sufficient general or public importance or commercial significance and did not raise a real risk of substantial miscarriage of justice.

Court Disposition

Leave to appeal granted as to proposed grounds 1 and 2; leave refused as to proposed grounds 3, 4 and 5; costs reserved.

Orders

  • Leave to appeal granted as to proposed grounds 1 and 2
  • Leave to appeal refused as to proposed grounds 3, 4 and 5