HUNTER ESTATE

Timaru Herald, Volume CXLV, Issue 21084, 9 July 1938, Page 4

HUNTER ESTATE

Appeal of Trustees Dismissed by Court By Telegraph—Press Association WELLINGTON. July 8. I The Court of Appeal, by a majority judgment by the Chief Justice (Sir Michael Myers) and Justices Kennedy. ' Callan and Northcroft, with Mr Justice Blair dissenting, dismissed the appeal i of the trustees, with costs on the highest scale, in the case of C. P. and T. p. I Hunter versus E. M. Hunter. I In the course of a lengthy judgment. I the Chief Justice said: "It is quite possible that on some of the grounds upon which the learned Judge has found against the appellants I myself or some other judge trying the case might come to a different conclusion. But for the reason presently to be given. I do not consider it necessary to discuss all these different matters in detail, or some of them at all. I understand the principle is sufficient if the evidence shows: <D That there is conflict between interest and duty; (2) that the trustees have failed to recognise this conflict and take steps to ensure that their interest should not prevail as against their duty and have disregarded the interests of the infant cestui que trust; and (3> that a state of hostility exists between the trustees and the immediate possessor of the trust estate, which is to work against the true inter''-* * the estate. "In my opinion, that is the position in this case,” said the Chief Justice, "irrespective of any other grounds, though there are here other grounds found by the learned trial judge which make all the more necessary the removal of the trustees from their office.’’ His Honour then continued to examine in detail several of the matters found against the trustees by the lower Court, and proceeded:—"l do not think it necessary to discuss any of the other I numerous matters of fact which were debated at the bar. Without discussing any of those matters, I find myself in entire agreement with the learned trial Judge when he says that the welfare i of the beneficiaries and of the trust I estate will best be secured by removing | the defendants as trustees, and ap- j pointing some independent person or I persons or corporation in their place.” j Question of Costs On the question of costs. His Honour , said: "Respondent has been compelled ' to appear in this Court and defend the judgment in the interests of the estate. ! and that being so I think there should ■ be an order that she should have her j costs as between solicitor and client | paid out of the testator’s estate, giving ’ credit for party and party costs which [ she recovers from appellants.’’ In separate judgments. Justices Kennedy. Callan and Northcroft arrived at the same conclusion as the Chief Justice, Mr Justice Northcroft in particu- l lar pointing out that the Court was | not concerned with the vindication of i the appellants, but with the welfare of i those for whom the trust was created, and that having regard to the conflict of interest and duty, and to the hostility between the trustees and the respondent, the trial Judge was Ixnind to add to them those matters of mis- , management which were proved, and j to consider their con-joint effect upon the question of removal. I Mr Justice Blair, in a dissenting ' judgment, said he differed entirely ! | from other members of the Court in his view. The matters to be decided : : should be approached from a different 1 standpoint from that adopted in the i Court below, and when they were so approached, it was seen that none ol I the charges made against the trustees ! were established. His Honour, howI ever, agreed that in view of the circumstances of the case, an order for the removal of the trustees should stand, but that order should be based solely on a mistaken attitude of the trustees as to an item of £1166. and ; should not be deemed to be a reflection upon the trustees. He did net i think costs should have been awarded against the trustees, but that they should have been allowed their costs ■ out of the estate. He concluded: "I . consider it an injustice to the trustee.'. : whose administration of the estate has. ! been marked with such success that l all they receive as acknowledgment for ' their years of labour is ignominious dismissal, together with the imposition upon them of substantial financial i loss."