IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2021-404-9823
[2021] NZHC 2823	

UNDER	rule 19.4(f) of the High Court Rules 2016 and s 133 of the Trusts Act 2019	
IN THE MATTER	of an application for Beddoe Orders by HUGH GREGORY KASPER and MURRAY PIERCE WILLIAMS WARD as
executors and trustees of the estate of Ronald John Kasper, HUGH GREGORY KASPER and HKJ KASPER TRUSTEE LTD as
trustees of the Richmond Road Trust and HUGH GREGORY KASPER and HKJ
KASPER TRUSTEE LTD as trustees of the RJ Kasper Trust
Applicants	
	……………………………. Continued	

Hearing:	3 September 2021	
Appearances:	P Collins for the Applicants
J Perry for the First Respondent
P Wright and J Barrow for the Second Respondent	
Judgment:	22 October 2021	

JUDGMENT OF ROBINSON J

This judgment was delivered by me on 21 October 2021 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Solicitors/Counsel

…………………………………………………………………… Registrar/Deputy Registrar

P Collins, Barrister, Auckland Mac & Co Lawyers, Auckland J Perry. Barrister, Auckland
Stephanie Paxton-Penman, Solicitor, Auckland
P J Wright & J Barrow, Barristers, Shortland Chambers, Auckland Harris Tate, Tauranga

KASPER TRUSTS v VAN DE ELZEN AND ANOR [2021] NZHC 2823 [22 October 2021]

AND	BELINDA VAN DE ELZEN
First Respondent

WENDY JOAN CURTIS
Second Respondent

Introduction

[1]	The applicants are the trustees of three trusts: the estate of Ronald John Kasper (Estate); and two inter vivos trusts settled by Mr Kasper during his lifetime, namely the Richmond Road Trust (RRT) and the RJ Kasper Trust (RJKT) (together the Trusts).

[2]	Mr Kasper and the second respondent, Ms Curtis, lived together as de facto husband and wife for 35 years until Mr Kasper passed away on 22 January 2020 aged
74. On 17 March 2021 Ms Curtis issued three Family Court proceedings against the applicants seeking relief under each of the Family Protection Act 1955 (FPA55); the Family Proceeding Act 1980 (FPA80); and the Property (Relationships) Act 1976 (PRA) respectively (together the Family Court proceedings). In all three proceedings Ms Curtis sues the applicants in their capacities as trustees of each of the three Trusts.

[3]	With one exception the applicants all seek Beddoe orders in relation to each of the three proceedings. That is, they apply for directions authorising them to defend the Family Court proceedings at the cost of their respective trust. The exception is that the trustees and executors of the Estate do not seek a Beddoe order in respect of the FPA55 proceeding.

[4]	Ms Curtis opposes the application.

The parties

[5]	The trustees and executors of Mr Kasper’s Estate are his brother Greg Kasper (Greg) and Mr Kasper’s solicitor Murray Ward (Mr Ward). On 5 August 2020 Probate was granted in respect of Mr Kasper’s will dated 5 August 2018.

[6]	Mr Kasper settled the RJKT and the RRT by Deeds of Trust dated 31 January 1997 and 26 May 2005 respectively. The trustees of both the RJKT and the RRT are Greg and HKJ Kasper Trustee Ltd.

[7]	Mr Kasper and Ms Curtis each have adult children from earlier marriages. They did not have children together. The first respondent is Mr Kasper’s daughter.

Background

[8]	In order to determine the trustees’ application for Beddoe orders I need to consider the merits of the Family Court proceedings, and whether they should be defended. This requires consideration of the substance of the dispute, necessarily on a preliminary and provisional basis.1 For this reason I summarise below the factual background relevant to the Family Court proceedings, noting that it is derived from affidavit evidence that has yet to be tested.

The properties

[9]	Mr Kasper and Ms  Curtis began living together around December 1985.    Mr Kasper moved into the house Ms Curtis owned in Remuera, Auckland. At that time Mr Kasper was the sole director and shareholder of John Kasper Carpets Ltd (JKCL) through which he worked fulltime. Ms Curtis says that initially she was the main income earner and paid for most of the household expenses. Eventually they opened a joint bank account into which they each deposited money to cover regular expenses, whilst still retaining separate bank accounts.

[10]	In 1989 Ms Curtis received an inheritance of around $280,000. She used it to purchase a property at Waihi Beach (Waihi property). Ms Curtis still owns the Waihi property. She says that from the outset she and Mr Kasper and all their family and friends understood that she owned the Waihi property. In 2014 Ms Curtis replaced the house on the Waihi property. She says this cost approximately $200,000 which she funded through the sale of the previous house and a secured bank loan.

[11]	In 1991 Mr Kasper purchased a 40% interest in the property at Remuera. Ms Curtis exhibits a copy of a Deed recording that transaction, but says she does not remember it. She says that at some stage Mr Kasper also purchased three rental properties in his name.

[12]	In March 1994 Mr Kasper and Ms Curtis sold the Remuera property and purchased a property on Richmond Road. Ms Curtis recollects it cost approximately

1	McLaughlin v McLaughlin [2018] NZHC 3198, at [32].

$360,000. They initially owned the property as tenants in common with Mr Kasper having a two-third share and Ms Curtis having a one-third share. Ms Curtis recalls that she used the proceeds of sale of her share of the Remuera property, while Mr Kasper contributed additional funds.

[13]	Ms Curtis says that she and Mr Kasper renovated the Richmond Road property twice. First before they moved in in 1994, and again about 7 years later. Ms Curtis says she and Mr Kasper shared the cost of the first renovation, but he paid for the second.

Work and family

[14]	Ms Curtis says that in around 1989 – 1990 she was a high performing and well remunerated sales manager. However, she and Mr Kasper decided she would reduce her hours to focus more on domestic matters. She also began to work for JKCL, where she worked for 13 years. She says she was underpaid compared to other staff but did not mind because she considered she was working in a family business. Her salary was just enough to cover the costs of her Waihi property.

[15]	Ms Curtis explains that over the next few years Mr Kasper also held shares in two other companies, Old Trafford Properties Ltd (Old Trafford), and Carpetland Ltd (Carpetland). These were used to acquire warehouses and other business assets to support or complement JKCL’s carpet business. These assets have since been sold. Ms Curtis says she also worked for the Carpetland business but she does not know for how much it was sold for or what became of the proceeds of sale.

The Property Agreement

[16]	On 1 August 1999 Ms Curtis and Mr Kasper entered into a property agreement in relation to their assets (Property Agreement). The Property Agreement will be a matter of particular focus in the Family Court proceedings. By way of background it records that:

[Mr Kasper and Ms Curtis] have reached an agreement relating to their respective interests in various assets and wish to record that agreement in writing pursuant to Section 40A of the Property Law Act 1952.

[17]	The Property Agreement records (amongst other things) that Mr Kasper would purchase Ms Curtis’ one-third share in the Richmond Road Property for $165,000. From then on it would be Mr Kasper’s separate property. Ms Curtis would not be entitled to any interest in that property in the future “as a result of her contributing work, services or money to that property”.

[18]	Conversely, the Property Agreement recorded that the Waihi property was  Ms Curtis’ separate property notwithstanding that they had both used it as a holiday home since 1989. Mr Kasper was not to be entitled to any interest in that property in the future as a result of his contributing work, service or money to that property.

[19]	The Property Agreement also records that the shares in JKCL, Carpetland and Old Trafford would be Mr Kasper’s separate property, together with any shares he owned in public companies. Any shares Ms Curtis owned in public companies would be her separate property.

[20]	Mr Kaspers’ separate property also includes any distribution from the RJKT, or any debt owing to him by that trust.   Ms Curtis says she did not realise that       Mr Kasper had a trust at this time, and that she knew nothing about its asset base or financial position.2

The Trusts

[21]	When Mr Kasper settled the RJKT on 31 January 1997 and the RRT on 26 May 2005 he was also one of the original trustees of each trust, together with Greg and  Mr Ward. Mr Ward has since retired as a trustee of the Trusts, but he is an executor and trustee of Mr Kasper’s estate.3 The beneficiaries of each trust included Mr Kasper, the first respondent and her children. Ms Curtis is a discretionary beneficiary of the RRT. Although she is not a named beneficiary of the RJKT, its beneficiaries include the RRT.

2	The Property Agreement refers to the “R J Kasper Family Trust” but it seems to be accepted this is a reference to the RJ Kasper Trust.
3	Mr Ward is an applicant and a defendant in each of the Family Court proceedings in that capacity.

Mr Kasper’s Estate

[22]	As noted above, Mr Kasper left a will dated 5 August 2018. He also left letters of the same date to the surviving trustees of each of RFKT and RRT.

[23]	The will and these letters, together with the most recent financial statements for each of the Trusts, demonstrate the extent to which their financial positions interrelate. The Estate’s biggest asset is a debt owing to it by RRT. The Estate’s biggest liability is a debt it owes to RKFT.

[24]	RRT is also the largest beneficiary of the Estate. RRT is to receive Mr Kasper’s share portfolio, $250,000,4 and effectively have forgiven the significant debt it owes the Estate. RJKT is the residual beneficiary of the Estate.

[25]	Ms Curtis is to receive the remainder of Mr Kasper’s furniture and chattels after particular items are distributed to in accordance with any list of Mr Kasper’s wishes.5

[26]	Ms Curtis does not otherwise benefit directly from Mr Kasper’s will. However, in his letter to the trustees of RRT Mr Kasper recorded his wish that during her lifetime Ms Curtis is to have the use of the Richmond Road property or any replacement property. He also suggested that the trustees of RRT use assets he had bequeathed to derive a fund from which they would pay all rates, taxes, insurance premia and other outgoings relating to the property. Following Ms Curtis’ death Mr Kasper recorded his wish that the RRT’s assets be distributed to the first respondent (or her children).

[27]	In his letter of wishes to the trustees of the RJKT Mr Kasper recorded his wish that they should pay any mortgage debt up to $100,000 owing by Ms Curtis and secured over her Waihi property. He directed that if she was to a beneficiary of the RJKT then she was to be appointed a beneficiary for that purpose.

4	The executors say the Estate has insufficient funds to pay this particular legacy.
5	The will records that any such list of Mr Kasper’s wishes is to be held together with his will, but no such list was before the Court.

Subsequent events

[28]	The trustees of the RRT sold the Richmond Road property in November 2019. They purchased a replacement property in Grey Lynn  for $2m on 1 May 2020.      Ms Curtis helped select that property. The RRT trustees acknowledge Ms Curtis’ life interest in that property and have entered into a Licence to Occupy with her in order to formalise that arrangement. They are paying the outgoings on that property of approximately $16,000 per annum.

[29]	In accordance with Mr Kasper’s wishes the trustees of RJKT also repaid the debt that Ms Curtis owed and which was secured by the mortgage over her Waihi property. They temporarily declared her a beneficiary of the RJKT in order to facilitate that.

[30]	In the result, though, Ms Curtis does not consider that her and Mr Kasper’s relationship property has been appropriately divided. Nor does she consider that, in all the circumstances, Mr Kasper has discharged his moral duty to make adequate provision for her in his will. Amongst other things she says that her outgoings now substantially exceed her income. This shortfall will increase when she retires. She is presently 69 years of age. She doubts Mr Kasper intended her to be in this position; but says this is not how matters should be left in any event. She has issued the Family Court proceedings in order to rectify matters.

The Family Court Proceedings

[31]	On 15 April 2021 Judge von Keisenberg directed that the three proceedings be consolidated. That is hardly surprising given the overlap of factual and legal issues that arise. However, for present purposes I will continue to refer to each of the proceedings distinctly. That is how the current application has been presented, and it facilitates the analysis that is required to deal with it.

[32]	All the proceedings are in their early stages. The pleadings are only broadly particularised. There has been no discovery beyond Ms Curtis’ supporting affidavit.

[33]	In the PRA proceedings Ms Curtis seeks relief including: determination of her and Mr Kasper’s shares in their relationship property; declarations concerning the status and ownership of their non-relationship property; and orders compensating  Ms Curtis for the disposal of relationship property to a trust or to a company(ies). She seeks those and other orders pursuant to various sections of the PRA.6 Importantly, this includes ss 44 and 44C which would enable the Family Court to make orders against third party trustees such as RRT and RJKT.

[34]	In the FPA55 proceedings Ms Curtis seeks an order for further provisions out of the Estate, and the costs of the proceeding be paid out of the Estate. As noted at paragraph [24] above, the RRT is the largest beneficiary of the estate, and RJKT is the residual beneficiary. Any reallocation of the Estate in Ms Curtis’ favour is likely to be detrimental to them.

[35]	In the FPA80 proceedings Ms Curtis seeks interim and final maintenance orders pursuant to ss 82 and 70 of the FPA80 respectively. She says she is unable to meet her reasonable needs and that the orders sought are just and expedient. It is not entirely clear why Ms Curtis has joined the RRT and the RJKT to these proceedings.

[36]	It seems likely that to some extent Ms Curtis’ claims for relief in the different proceedings are interdependent. By way of example, the strength of her claim for relief under the FPA55 may depend, at least in part, on whether she is able to obtain relief under the PRA. Similar with her FPA80 claim. This supports the decision to consolidate the three proceedings. In practical terms the Family Court will consider matters in the round.

Applications

[37]	The applicants say that Beddoe orders are necessary and appropriate because Ms Curtis’ various claims may adversely affect the property of the Trusts and the interests of the beneficiaries of those Trusts.

6	Ms Curtis’ Notice of Application expressly relies on ss 8, 9, 9A, 11, 11B, 15, 15A, 17, 18, 20B, 23, 25, 31, 32, 33, 24, 44, 44B, 44C, 44E, 44F and 75 to 94 of the Property (Relationships) Act 1976.

[38]	Ms Curtis disagrees. She opposes the orders being made. In her Notice of Opposition she asserts that:

(a)	the orders sought are not in the best interests of all the beneficiaries of the Estate, the RRT and the RJKT; and

(b)	the Family Court proceedings are hostile as between her and the applicants. The applicants have a conflict of interest with regard to the outcome of these proceedings. As such Beddoe orders are not appropriate.

[39]	In her Notice of Opposition, Ms Curtis also opposed the application on the basis that the first respondent would defend the Family Court proceeding, and the applicants should not be authorised to “step into [her] shoes”. However, during the hearing it was common ground that the first respondent does not have standing to defend the FPA80 or the PRA proceedings.

Legal principles

Beddoe orders – general principles

[40]	The Court of Appeal has recently considered Beddoe orders in McCallum v McCallum.7 The Court of Appeal confirmed that a trustee’s duty to protect trust assets can sometimes require them to defend proceedings and on those occasions their litigation costs should be paid from trust funds:8
As this Court observed in Pratley v Courteney, a trustee has a duty to protect trust assets for the benefit of the beneficiaries. The duty extends to bringing, and defending, claims necessary to fulfil that duty. But they must do so where the grounds for action, or defence, are reasonable. The trustees must exercise due skill and care. If there is doubt as to what they may do, trustees should take legal advice, and they may seek directions from the Court. Litigation costs incurred for the benefit of the trust in its defence will generally be paid out of trust funds. But they must be reasonably and properly incurred. A Beddoe order may be sought to confirm pre-emptively the propriety of action or defence, and to confirm the trustees’ entitlement to indemnity for costs to be paid out of the trust’s funds.

7	[2021] NZCA 237.
8	At [28] (footnotes omitted).

[41]	Ultimately, whether or not the Court will grant pre-emptive approval and indemnity in the form of a Beddoe order will depend on whether that would be in the best interests of the beneficiaries. The Court of Appeal cited with approval Thomas J’s judgment in McLaughlin v McLaughlin:9
The test as educed from case law is simply that Beddoe applications are gauged against the fundamental question of what is in the best interests of the trust. The Court must therefore exercise its jurisdiction in the best interests of the trust, and the beneficiaries as a whole, having regard to all the circumstances. This may include the need to balance the interests of different beneficiaries, as well as the interests of beneficiaries and trustees. The basic test conforms to the principle on which such applications are founded, namely that trustees ought to be indemnified for costs properly and reasonably incurred for the benefit of the trust.

Hostile litigation

[42]	Beddoe orders will not be appropriate in “hostile” proceedings against the trustees. In McCallum the Court of Appeal explained what amounts to hostile litigation in the context of an application for Beddoe orders:10
We referred earlier to the concept of “hostile” claims. There are a number of New Zealand authorities suggesting that a Beddoe order will not be granted in hostile litigation, or only in exceptional circumstances. The expression “hostile” is a convenient but crude shorthand for cases where it is inappropriate to pre-empt allocation of costs in advance of the ultimate event. Typically, such a case involves a claim by a beneficiary asserting breach of trust or other fiduciary duty by the trustee. Because the label is crude, it is also inaccurate. For example, it is not inappropriate to pre-empt indemnity where trustees are defending the interests of the trust against third parties. Such litigation is “hostile” in a general sense, but the trustee will be indemnified for the reasonable and necessary costs in defending the trust estate against insurgents. In that sense the label hostile is wrong; some “hostile” claims will earn pre-emptive indemnity via a Beddoe order. A better (but still not wholly accurate) label would be “self-interested litigate” litigation. In that sense, the fifth, sixth and seventh modern Lewin categories referred to at [35] above are “self-interested litigation” and unlikely to earn pre-emptive indemnity via a Beddoe order. Whether, in the end result, indemnity is available to trustees defending such action will depend on the ultimate outcome of, and the trustees’ conduct in, the litigation.

[43]	The Court of Appeal’s reference to the Lewin categories is a reference to the seven categories of trust litigation identified by the editors of Lewin on Trusts.11 The

9	McCallum, at [43] citing McLaughlin, at [29].
10	McCallum at [42] (footnotes omitted).
11	Lynton Tucker, Nicholas LE Poidevin and James Brightwell Lewin on Trusts (20th ed, Sweet & Maxwell, London, 2020) Vol II (Lewin on Trust) at [48-002].

three categories in which the Court of Appeal considered be “self-interested” and therefore unlikely to earn Beddoe orders were:12

…

(5)	breach of trust proceedings;

(6)	proceedings concerning self-dealing and profits from the trust; and

(7)	proceedings for or concerning the removal of trustees.

[44]	It is apparent from this that whether litigation against a trustee is “hostile” will depend on the capacity in which the defendant trustee is sued, the nature of the claim and the relief sought.

[45]	Where the plaintiff is also a beneficiary of the trust it will also be relevant to consider whether that is the capacity in which the plaintiff claims against the trustees.

[46]	In Pratley v Courteney the plaintiff sued his father’s estate for reimbursement of an amount that he had paid towards his father’s care in the last few weeks of his life.13 The defendant trustee and executor of the father’s estate was also the residual beneficiary of that estate, in his capacity as trustee and executor of the mother’s estate.

[47]	The High Court had disallowed the trustee’s claim for his litigation costs to be met from trust assets on the basis that the litigation against him was a “hostile dispute between two rival claimants to a trust fund …”. The Court of Appeal disagreed, holding that:

[22] We consider this was an error. Steven was not claiming against the  estate in his capacity as a beneficiary. This was not a claim to the same trust fund by two rival beneficiaries. Steven pursued the claim, not in his capacity as a beneficiary, but as a person claiming to be a creditor of the estate.

[48]	It is also worth noting that the Court of Appeal allowed the trustee his costs notwithstanding that his defence was unsuccessful. The trustee had acted reasonably in pursuing the defence even though it ultimately failed.

12	McCallum, above n 7, at [35].
13	Pratley v Courteney [2018] NZCA 436, [2018] NZAR 1787, at [18].

Discussion and analysis

Are there defences available to defendant trustees?

[49]	In summarising Ms Curtis’ claims Mr Wright says that Mr Kasper and the trusts he settled are in a much stronger financial position that Ms Curtis. This is notwithstanding that they shared their lives together from a relatively young age; and at the commencement of their relationship Ms Curtis was in a stronger financial position that Mr Kasper. He says this indicates that some redress is required.

[50]	Mr Collins submits there are defences reasonably available to the trustees in each of the proceedings. Unsurprisingly, he points to the Property Agreement. He argues that the legislative amendments made  to  the  PRA  after  Mr  Kasper  and Ms Curtis entered into the Property Agreement on 1 August 1999 do not apply;14 and that the Property Agreement cannot be set aside pursuant to the “ordinary principles of contact law” that otherwise prevail. Alternatively, if the Property Agreement is set aside, the Estate would assert that the Waihi Property is also relationship property.

[51]	Mr Collins further submits that the Trustees can defend the FPA55 proceedings and the FPA80 proceedings on the basis that Mr Kasper has reasonably provided for Ms Curtis. The trustees of the Trusts have complied with his letters of wishes, as a result of which Ms Curtis has a licence to occupy the Grey Lynn property for the rest of her life, with the RRT meeting all outgoings on that property. RJKT has also repaid the debt that was secured over Ms Curtis’ Waihi property.

[52]	My preliminary and provisional view is that there is merit in these defences, and the trustees should pursue them. It would likely be an abrogation of their duties if they did not. I emphasise that in saying this I am not expressing a view as to whether those defences will ultimately succeed, wholly or in part. Nor am I suggesting that it might not be appropriate at some point for the trustees to compromise. It will be for them to determine later whether that would be in the best interests of the beneficiaries. No doubt they will continue to take advice in that regard.

14	He refers to ss 21P and 21R of the Property (Relationships) Act 1976, and the Court of Appeal judgment in Moore v Marsten [2015] NZCA 421.

Are the proceedings “hostile”?

[53]	I do not consider that any of the Family Court proceedings amount to “hostile” litigation against any of the trustees. Ms Curtis does not allege any breach of fiduciary duty, breach of trust or other impropriety by any of them. She does not seek to have them removed. She seeks no remedy against them personally. The only remedy she seeks is in relation to trust assets. The trustees have a duty to protect those assets, but they are not “self-interested” in the litigation.

[54]	Mr Wright submits that although the Family Court proceedings may not be “hostile” litigation per se, they become hostile in circumstances where Ms Curtis is also a beneficiary of the Estate and the RRT. He submits that in defending Ms Curtis’ claims the trustees would be preferring the interests of all other beneficiaries over Ms Curtis’ interests. He says this would amount to a breach of the trustees’ duty of impartiality, for which they could be liable personally.

[55]	I do not agree. Just like the plaintiff in Pratley, Ms Curtis does not bring the Family Court proceedings against the trustees in her capacity as a beneficiary but as a third-party claimant. For present purposes she is, to use the language of the Court of Appeal, an “insurgent” making a claim against the trust assets. 15 The trustees are duty bound to protect those assets, including to take reasonable steps to defend the proceedings.

[56]	By taking reasonable steps to defend these proceedings the trustees are discharging their duty to all beneficiaries. Their duty of impartiality does not constrain them. They are not considering competing claims between beneficiaries as beneficiaries, nor deciding how they might exercise their discretions or powers as trustees in favour of some or all beneficiaries.

15	McCallum, above n 7, at [42].

Should all trustees defend all Family Court proceedings?

[57]	I have already noted that the trustees of all three trusts seek Beddoe orders in relation to all three Family Court proceedings, save for the executors of the Estate in relation to the FPA55 proceeding.

[58]	Mr Wright submits that the trustees have been served merely “to avoid downstream procedural hiccoughs”, and that the Estate should take the lead in defending these proceedings.

[59]	For reasons set out above I do not accept that the trustees of the RRT and the RJKT have been served with the FPA55 proceedings or the PRA proceedings purely for procedural reasons. Any relief Ms Curtis might obtain under the FPA55 would likely be at the expense of the RRT  and/or the RJKT.  And while I agree that        Mr Kasper, via his Estate, is the most obvious defendant in the PRA proceedings,  Ms Curtis also seeks orders pursuant to ss 44 and 44C the PRA. This claim, while not particularised, appears to contemplate claims for substantive orders against the assets of the RRT and/or the RJKT.

[60]	Mr Wright’s submission carries more weight in relation to the FPA80 proceedings. Mr Kasper’s Estate is the obvious defendant in those proceedings, and it is not apparent from the pleading that any substantive relief is sought against the RRT or the RJKT. Nevertheless, Ms Curtis has seen fit to join the trustees of those trusts as defendants. There is no indication that she intends to discontinue against them. As such it would be premature for me to conclude at this stage that the trustees of those trusts, acting reasonably, will not be required to incur costs in relation to the FPA80 proceeding.

Conclusion

[61]	For these reasons I consider it is appropriate to grant the applicants the orders sought in relation to each of the Family Court proceedings. The trustees are authorised to defend the Family Court proceedings, and to pay the reasonable costs of doing so from the resources of the trusts they represent.

[62]	The trustees will need to consider responsibly throughout the course of the proceedings what steps and costs are reasonable. Without in any way predetermining what that might entail, I observe that where it is appropriate to do so it would seem reasonable for the trustees to cooperate in the defence of the proceedings, just as they have in the course of making this application. That will avoid unnecessary duplication and expense. Where cooperation is possible the trustees will also need to consider responsibly how their costs are to be allocated between the different Trusts.

Result

[63]	I make Beddoe orders in terms of the Applicants’ Notice of Originating Application dated 1 June 2021.

[64]	As the parties agreed at the hearing, each parties’ reasonable costs in this application are to be paid from the assets of the Trusts.16 The parties should be able to agree how these costs are to be allocated between the Trusts. If not, then memoranda are to be filed within 10 working days and I will deal with the matter on the papers.

Robinson J

16	McCallum, above n 7, at [71].