HUNTER ESTATE

Greymouth Evening Star, 28 April 1938, Page 11

HUNTER ESTATE

COSTS OF LITIGATION. [per press association.] WELLINGTON, April 27. Argument on behalf of respondent, Lady Hunter, was commenced before the Court of Appeal, this morning, by Mr. J. D. Willis, who said that, as .the action in the Supreme Court was ‘one for the removal of the trustees and executor, the sole question for the Court of Appeal was whether that removal was justified. As counsel for the appellants had announced that they 1 would not have the trusteeship back, it was submitted that there was nothing against which an appeal would lie —the whole hearing of the appeal was abortive, in view of the fact that it is, in effect, against Mr. Justice Smith’s reasons for the removal, and not against the removal itself. The Chief Justice (Sir Michael Myers) pointed out that the proceedings before the Court of Appeal were something more than an appeal against the reasons for the judgment. It was also an appeal -as to costs, and for this purpose the whole judgment appealed from had to be looked at. His Honor said it seemed to be unfortunate. to say the least, that the tremendous cost of printing the case on appeal had to be borne by some party (possibly the estate) when the sole question was one of costs only. On this point, Mr. 'Willis referred to the evidence given at the hearing of the action, where the appellants had said that, they would not relinquish their trusteeship, and despite this, they were now seeking to give up their offices,- provided that the cost of litigation came out of the estate. There was inherent jurisdiction in the Court to remove the trustees, and, in counsel’s submission, the chief reasons for so doing were three: (1) That a trustee would be removed for his 'mismanagement of a trust estate; (2) Wwhere there was conflict of interest and duty; (3) In certain cases -where there was hostility between trustee and beneficiary. The principle as to was that, taking a broad and general interests of the beneficiary that the view of the whole facts, was it in the the removal of a trustee from office trustee should be removed? In the present case, it was submitted, this principle had been correctly applied by Mr. Justice Smith. On the question I of the appelants obtaining obtaining! their costs out of the estate, counsel said that their curious persistence and ambition to retain their . offices, in spite of years of hostility and expensive litigation, dissentitled them to recover their costs at the expense of the estate.