Ruling notes case management challenges involving both parties and the court registry
New Zealand’s Court of Appeal has found it necessary to refer a trusts proceeding back to the High Court due to the complexity of the factual background, the evidence of the various transactions involved, and the value of the properties.
In Lieven v Grieve, [2025] NZCA 169, the parties obtained multiple properties and created trusts to manage them during their marriage of two decades. The parties later separated.
In December 2021, the appellant made a claim alleging that the respondent violated his trustee obligations, misused trust funds, and failed to keep the appropriate records while holding property as a bare trustee on her behalf.
The respondent denied these allegations. He brought a counterclaim arguing that the appellant failed to account for rental income from specific residential properties and instead used those funds for her own benefit.
In May 2023, a High Court judge made preliminary findings, which ordered the parties to file further evidence and directed the appellant to allow the respondent to access a Kāpiti house to retrieve relevant documents. The appellant provided such access.
The respondent later alleged that the appellant had removed the documents, which he could not find. In October 2023, the respondent’s counsel filed a memorandum asking the court to deny the appellant’s claim for breach of trust since she failed to abide by the court’s directions.
On 18 December 2023, the appellant drafted her own memorandum denying the respondent’s allegation and noting that her lawyer was feeling unwell. The appellant retained a new lawyer in late 2023.
On 20 December 2023, the appellant’s new counsel asked the High Court registry if the proceeding had any pending steps. The registry responded that the matter had no future events. On 22 December 2023, the appellant’s new counsel filed a notice of change of solicitor.
In June 2024, the High Court judge dismissed the claim and counterclaim based on the evidence presented and the apparent non-compliance with her prior directions. The appellant wanted to overturn the June judgment and remit the matter to the High Court.
The Court of Appeal of New Zealand allowed the appeal, set aside the June judgment, and remitted the proceedings to the High Court for further directions in line with the principle of natural justice.
The appeal court decided that the High Court judge might have unfairly and prematurely disposed of the proceedings. The appeal court noted that she might not have known about the appellant’s change of solicitor or the new counsel’s inquiry to the High Court registry.
The appeal court ruled that the High Court had a new matter to consider, given that the appellant’s counsel advised that the respondent and the High Court had yet to receive additional relevant evidence.
The appeal court added that the proceedings featured case management challenges involving the High Court registry and both parties.
First, the appeal court found that the respondent’s counsel could have filed a formal application requesting dismissal instead of inviting the court to dismiss the proceedings via the October 2023 memorandum. The appeal court noted that a formal application:
Second, the appeal court said the appellant’s counsel could have requested a case management conference to move the matter forward rather than relying on the court registry’s response that the proceedings had no further scheduled events.
Third, the appeal court acknowledged that the appellant lacked representation at a key point in the proceedings.
Lastly, the appeal court ordered that costs should lie where they fell. The appeal court noted that the appellant was partly responsible for the unsatisfactory direction the High Court litigation had taken, even though she succeeded in her appeal.
