IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2023-404-2969
[2024] NZHC 2603	

BETWEEN	GILLIAN JANE GATFIELD
First Plaintiff/Applicant

EMMA JACQUELINE PEARSON
Second Plaintiff/Applicant	
AND	ANNE ELIZABETH HINTON
Defendant/Respondent	

Hearing:	(Determined on the papers)	
Counsel:	M A Jeffries for Plaintiffs
A S Butler KC for Defendant
R B Lange for Interested Parties (J M Allen and R M Gatfield)	
Judgment:	10 September 2024	

JUDGMENT OF ASSOCIATE JUDGE LESTER
(interlocutory application for various orders)

This judgment was delivered by me on 10 September 2024 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

…………………………..

GATFIELD v HINTON [2024] NZHC 2603 [10 September 2024]

[1]	On 15 August 2024, the plaintiffs applied for various orders, including an order this proceeding be dealt with by a High Court Justice and that the orders made by me on 26 June 2024 and varied on 10 July 2024 be set aside, and that a transcript of the hearing on 11 June 2024 be provided to the parties.1

[2]	The plaintiffs have already applied for leave to appeal and for a stay of enforcement of the judgment of 26 June 2024.2

[3]	By judgment dated 29 July 2024, I declined the application for a stay in respect of the order that the parties attend mediation.3 Mediation subsequently took place but unfortunately it was not successful meaning that, under the terms of the 26 June 2024 judgment, the parties are required to arbitrate.

[4]	Accordingly, the outstanding order under the 26 June 2024 judgment is the obligation on the parties to attend arbitration. The application for leave to appeal the 26 June 2024 decision, which includes the obligation to participate in arbitration, is not opposed. Nor is a stay opposed.

[5]	While leave to appeal does not follow from the application being unopposed, I am satisfied it is appropriate to grant leave. None of the authorities referred to in my judgment of 26 June 2024 concerned an order that the parties attend arbitration. Nor am I aware of any proceeding concerning s 145 of the Trusts Act 2019 (the Act) being considered by the Court of Appeal.

[6]	It would be beneficial for the Court of Appeal to provide guidance in respect of section 145 of the Act.

[7]	Accordingly, leave to appeal is granted.

[8]	I also grant the stay on the basis it is unopposed.

1	By Minute dated 6 September 2024, Moore J declined an application that the orders sought in the 15 August 2024 application be determined by a High Court Justice. Accordingly, I now issue this judgment in respect of those applications.
2	Gatfield v Hinton [2024] NZHC 1712.
3	Gatfield v Hinton [2024] NZHC 2074.

[9]	With the proceeding stayed, it is not necessary for me to deal with the balance of the orders sought by the plaintiffs in their application of 15 August 2024, that is, that this proceeding be dealt with by a High Court Justice under s 26(2) of the Senior Courts Act 2016 and that the judgment of 26 June 2024 and the stay judgment be set aside.

[10]	If the appeal is unsuccessful then the proceeding will be determined at arbitration. If the appeal is successful then the remainder of the orders sought by the plaintiffs in their 15 August 2024 application (to the extent they may remain relevant) can be considered against any guidance provided by the Court of Appeal in respect of the proceeding.

[11]	I deal with the application for a transcript below.

Transcript

[12]	The plaintiffs’ memorandum of 22 July 2024 sought either a copy of the audio recording be provided or a transcript of the hearing. The application was said to rely on the interests of justice and for open justice. It is said the transcript is relevant to comments from the Bench relating to the merits and appropriateness of mediation, arbitration, the Court hearing, the defendant’s status as a Judge and the implications of the defendant’s judicial status in relation to the application and the extant proceeding.

[13]	In my Minute of 10 July 2024, I declined the application for a transcript noting:

Transcripts are not provided without good reason and a general reference to wanting to consider grounds of appeal is not considered a good ground. If counsel consider something said during the hearing is relevant to leave to appeal, they are expected to confer to see if what was said can be agreed. If it cannot be agreed, the Court is approached to see if it will confirm counsels’ recollection of an exchange and if there remains disagreement, an application to prepare a Transcript of the relevant part of the hearing will then be considered by the Court.

[14]	There is no indication that the plaintiffs have followed the above procedure. If and when the steps identified in [13] above have been completed and there remains

any disagreement, then the issue of whether a transcript should be prepared will be revisited.

Costs

[15]	The plaintiffs, in their memorandum of 15 August 2024, seek that costs be reserved  on  all  aspect  of  the  proceeding.  The  defendant,  by  memorandum  of  8 August 2024, noted the judgment of 26 June 2024, reserved costs to be addressed following mediation.

[16]	The application for referral to mediation sought the following order in respect of costs:

The costs of this application be met out of the funds held in the KMG Estate or by the plaintiffs if the application is unsuccessfully opposed.

[17]	In my judgment of 26 June 2024, I incorrectly referred only to the first part of that cost application, that is, that the costs be paid from the Estate.

[18]	The defendant seeks costs on the basis that there is no reason why costs should not follow the event. The defendant seeks that the costs be met personally by the plaintiffs as the unsuccessful parties rather than being met by the Estate. Costs are sought on a 2B basis including in respect of the stay application.

[19]	The starting point under r 14.8 of the High Court Rules 2016 (the Rules), is that costs on interlocutory applications are, unless there are special reasons to the contrary, to be fixed when the application is determined, and are to be payable when they are fixed. Rule 14.8(2) of the Rules provides that, despite that rule, “the court may reverse, discharge or vary an order for costs on an interlocutory application if satisfied subsequently that the original order should not have been made”.

[20]	I fix costs in terms of para [9] of the memorandum of 8 August 2024 on behalf of the defendant and interested parties. However, I stay enforcement of those costs on the condition that the appeal is filed within 15 working days of this judgment (that is by Tuesday 1 October 2024). The outcome of the appeal may have a bearing on costs.

[21]	The application for leave to appeal dated 22 July 2024 sets out the grounds of appeal in detail and so there should be no difficulty in the appeal being filed within 15 working days. It is also a condition of the application for leave to appeal that it is filed within 15 working days and that the appeal is pursued diligently. Leave is reserved to apply to review the stay if the appeal is not pursued diligently.

[22]	Accordingly, the immediate future of this proceeding will be taken up with the appeal. The remaining aspects of the 15 August 2024 application are reserved until after the conclusion of the appeal or the lifting of the stay, should the appeal not be pursued diligently.

[23]	The request for a transcript remains unresolved given the directions I made on 10 July 2024 are apparently yet to be completed.

Associate Judge Lester

Solicitors:
M A Jeffries Solicitors, Auckland (for Plaintiffs) Simpson Grierson (for Defendant and Interested Parties)

Copy to counsel:
A S Butler KC, Barrister, Auckland (for Defendant) H Waalkens KC, Auckland (for Interested Parties)