SHORTER V REYNOLDS HC AK CIV -2006-404-003477

SHORTER V REYNOLDS HC AK CIV -2006-404-003477 1 November 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV -2006-404-003477BETWEEN VIVIENNE ALICE SHORTER, AS TRUSTEE OF THE STAMPER TRUST Plaintiff AND GRAHAM FRANCIS REYNOLDS, AS TRUSTEE OF THE STAMPER TRUST First Defendant Hearing: 25 October 2006 Appearances: Deidre Watson for Plaintiff S J Tee for Defendant Judgment: 1 November 2006 at 4.30 p.m.JUDGMENT OF ASSOCIATE JUDGE J P DOOGUEThis judgment was delivered by me on1 November 2006 at 4.30 pm, pursuant to Rule 540(4) of the High Court Rules. Registrar/Deputy Registrar DateSolicitors: Rory MacDonald Law, P O Box 37-851, Parnell - by facsimile: 307 3325 Morton Tee & Co, P O Box 331-133, Takapuna, - by facsimile: 489 7117 Counsel: D Watson, P O Box 3886, Auckland - by facsimile: 377 3427[1] The plaintiff in this proceeding has discontinued. No agreement as to costs has been possible. The defendant seeks costs. Rule 476C applies. The presumption is that the plaintiff will pay the costs. The Court can order otherwise. There must be proper grounds for making such an order. They will generally relate to the merits of the decision to issue proceedings in the first place. [2] In this case the plaintiff applied to remove the defendant as a trustee of a Trust because he would not take steps to sell the house property which the trust owned. Solicitors wrote to the defendant in or about January of 2006 confirming that they wanted Mr Reynolds to co-operate in the sale of the property. On 10 February the solicitors wrote back saying they had left messages for Mr Reynolds to give instructions. On 22 February the solicitors for the plaintiff wrote saying that the defendant was in breach of his obligations to the beneficiaries of the trust and threatening to remove Mr Reynolds if he did not co-operate. [3] On 17 March the solicitors for Mr Reynolds wrote saying that Mr Reynolds had no objection to the sale of the house but mentioning that he was going to bring a Law Reform (Testamentary Promises) Act application. [4] Thereafter there were communications between both sides concerning an appropriate price for the property. Mr Reynolds stipulated for $425,000. This was more than the offers which had been made of $410,000 and $415,000. [5] In the meantime, on 20 June the plaintiffs had commenced proceedings for the removal of Mr Reynolds as a trustee. [6] Eventually the property was sold at $425,000. That occurred in September of this year and was the reason why the proceedings were discontinued. [7] At the time when the trustees applied for Mr Reynolds removal, they already had his consent to the sale of the property. The only argument concerned the price at which it might be sold. It might be that the trustees were fearful that Mr Reynolds apparent earlier lack of co-operation was now going to be repeated over the matter of price. On the other hand, Mr Reynolds delay in getting back to the trustees whenthey first sought his co-operation of selling the house could have been due to the fact that he apparently works as a ship's officer or seaman. [8] It's very difficult to assess whether or not the plaintiffs had good reason to issue the proceedings in June of this year. They need to affirmatively demonstrate that they did otherwise the presumption contained in the Rules will govern the situation. In the end, my position is that they may have had good reason but I am not persuaded that they actually did have good reason. As I have said Mr Reynolds was by then co-operating in the sale process except that he had firm views on the price – views that were ultimately vindicated by the price that was obtained for the property. [9] In the circumstances, I consider that the plaintiff must pay the costs of the defendant of and incidental to the proceeding up to and including the discontinuance. Costs will be on a 2B basis together with disbursements to be fixed by the Registrar. _____________ J.P. Doogue Associate Judge