JAGGAR & ORS V JAGGAR & ORS HC CHCH CIV-2008-409-002241

JAGGAR & ORS V JAGGAR & ORS HC CHCH CIV-2008-409-002241

Summary judgment entered for the Kelby Trust ordering payment of 50% of the solicitors' trust funds because the deed of resettlement and trust terms created an unequivocal entitlement and any solicitor's lien did not attach to funds held for a specified purpose; summary judgment was refused in respect of ownership of the resource consent because material factual issues (parties' common intention, scope of easement, quantity of water rights and possible mistake or need for rectification) required trial evidence and could not be resolved on affidavit material.

Citation
openlaw-fc1bdbc7_2db4_4f8f_909b_6ad51aefd050.pdf
Parties
First Plaintiffs: C A Jaggar, R S Parkes and S R Balchin as trustees of the Kelby Trust; Second Plaintiff: C A Jaggar; First Defendants: D V Jaggar, C A Jaggar and P J Dorrance as trustees of the Fairhaven Family Trust; Second Defendant: D V Jaggar; Third Defendant: Fairhaven Gardens Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 August 2009
Procedural Posture
Civil Relationship Property / Trust Dispute / Application for Summary Judgment (partial Summary Judgment Granted; Remainder Set for Trial)
Outcome
Partial summary judgment: payment order for trust funds granted; summary judgment refused as to resource consent and other claims; costs reserved; case management directions given
Legal Topics
Trust Fund Distribution, Trustees' Duties and Indemnity, Ownership of Resource Consent, Easement Rights, Solicitor Trust Account and Lien, Contractual Mistakes Act 1977, Rectification, Summary Judgment Test
Trusts Property Law Relationship Property Resource Consents / Environmental Law Contract Law Civil Procedure Trust Fund Distribution Trustees' Duties and Indemnity +6 more

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Parties

C A Jaggar, R S Parkes and S R Balchin as trustees of the Kelby Trust

First Plaintiffs

C A Jaggar

Second Plaintiff

D V Jaggar, C A Jaggar and P J Dorrance as trustees of the Fairhaven Family Trust

First Defendants

D V Jaggar

Second Defendant

Fairhaven Gardens Ltd

Third Defendant

Procedural Posture

Civil Relationship Property / Trust Dispute / Application for Summary Judgment (partial Summary Judgment Granted; Remainder Set for Trial)

Legal Issues

  1. 1 Whether trustees must pay 50% of solicitors' trust funds to Kelby Trust (claim for trust fund distribution)
  2. 2 Whether the resource consent to take groundwater is held equally by the settlors or belongs to one party (ownership of resource consent and scope of easement)
  3. 3 Whether indemnity costs should be awarded against named defendants and whether solicitor/trustee can assert a lien over trust funds

Ratio Decidendi

Summary judgment entered for the Kelby Trust ordering payment of 50% of the solicitors' trust funds because the deed of resettlement and trust terms created an unequivocal entitlement and any solicitor's lien did not attach to funds held for a specified purpose; summary judgment was refused in respect of ownership of the resource consent because material factual issues (parties' common intention, scope of easement, quantity of water rights and possible mistake or need for rectification) required trial evidence and could not be resolved on affidavit material.

Court Disposition

Partial summary judgment: payment order for trust funds granted; summary judgment refused as to resource consent and other claims; costs reserved; case management directions given

Orders

  • Trustees of the Fairhaven Family Trust shall authorise and instruct Duncan Cotterill to pay 50% of all money held by that firm in its trust account for the credit of the Fairhaven Family Trust to the first plaintiffs, the trustees of the Kelby Trust
  • Summary judgment in respect of the balance of the claims is refused