Hansard v Hansard [2014] NZHC 544 (21 March 2014)

Last Updated: 29 September 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6078 [2014] NZHC 544

BETWEEN	GERALD GUY HANSARD and DIANA HANSARD as Trustees of the GG Hansard Family Trust No 2 Plaintiffs
AND	DAVID GUY HANSARD and SHARON GRACE HANSARD as Trustees of the D & S Hansard Family Trust Defendants

Hearing:	On the papers
Counsel:	D J Chisholm QC for Plaintiffs P Kennelly for S G Hansard
Judgment:	21 March 2014

_{COSTS JUDGMENT ELLIS J}

This judgment was delivered by me on Friday 21 March 2014 at 5.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

D J Chisholm QC, Barrister, Auckland

P Kennelly, Kennelly Law, Orewa

HANSARD v HANSARD [2014] NZHC 544 [21 March 2014]

[1] As recorded in my minute dated 11 March 2014 Counsel’s memoranda dated

17 July and 31 July 2013 have only very recently been referred to me. The memoranda are concerned with the payment of costs arising from my judgment dated 4 July 2013 in which I found in favour of the plaintiffs.¹ In my judgment, I omitted to deal with the issue of costs. There is, however, no reason to depart from a standard 2B award in that respect and neither party has submitted to the contrary.

[2] The specific issue that has arisen, however, is that the plaintiffs say that one of the two defendant trustees, Sharon Hansard, should personally pay these costs. They say this because their claim was admitted by the other defendant trustee, their son, David. Because the defendant trustees were, self-evidently, not ad idem, the plaintiffs submit that Sharon cannot have been acting properly as a trustee when she defended their claim. The requirement for unanimity between the trustees was a feature of my judgment.

[3] I have to confess that I am somewhat at a loss as to why this issue is any of the plaintiffs’ concern. I would have thought that their only legitimate interest in the matter is in seeing a costs award made, and paid.

[4] Putting that point to one side, however, there are other unattractive aspects to the plaintiffs’ position. First, the question of Sharon’s authority to defend the proceeding has never (to my recollection) previously been raised. That proposition has effectively been recognised by the plaintiffs, who say that, by analogy, they are asking the Court to make a costs award against a non-party.

[5] Secondly, it seems to me that the (obvious) absence of unanimity between Sharon and David in relation to the plaintiffs’ claim cuts both ways. It must be assumed, for example, that David did not have authority to concede the claim. Nor do I think for one minute that David has separated his personal interest in the outcome of the proceeding from his interest and duty as a Trustee any more than Sharon has done. Nor was his concession of the claim necessarily consistent with the best interests of the Trust. Indeed in the event that his parents had not been able

to establish their debt or in the event that my decision is, yet, overturned, his decision would have been directly contrary to those interests.²

[6] If Sharon’s defence of the claim had been plainly hopeless or in some way an abuse of the Court’s process I might have been of a different view. But given the failure of the plaintiffs’ earlier summary judgment application, and the comments made in that context by the learned Associate Judge, such a conclusion could not, in my view, fairly be drawn.

[7] It is trite that the question of costs is at the discretion of the Court. I do not consider that justice favours the order sought by the plaintiffs. I decline to make it. Instead, I direct that their disbursements, together with costs on a 2B basis are to be paid by the D & S Hansard Family Trust. I record that no issue has been taken with the calculations prepared on behalf of the plaintiffs in that respect.

[8] Interest on the judgment sum, calculated from 10 October 2011 (the date of demand) is also properly payable by the Trust.

Rebecca Ellis J