IN THE SUPREME COURT OF NEW ZEALAND
SC 40/2007
[2007] NZSC 92
BETWEEN GEORGINA KAIN, GEORGE HARRY
COUPER KAIN, GEORGE CHARLES
KAIN, GEORGE THOMAS CARLTON
KAIN AND GEORGE MICHAEL KAIN
First Appellants
AND GEORGE THOMAS CARLTON KAIN
Second Appellant
AND JONATHON RHODES HUTTON
First Respondent
AND WILLIAM ALEXANDER XAVIER
COUPER
Second Respondent
AND ANNETTE ELIZABETH COUPER
Third Respondent
AND WAYNE KEITH STARTUP
Fourth Respondent
AND GEORGE THOMAS KAIN
Fifth Respondent
AND MARY HUTTON
Sixth Respondent
Hearing: 19 November 2007
Court: Tipping, McGrath and Anderson JJ
Counsel: J S Kós QC and J V Ormsby for Appellants
M R Camp QC for Second Respondent
R A Osborne for Third Respondent
Judgment: 20 November 2007
JUDGMENT OF THE COURT
A. The application for leave to appeal is granted as regards
proposed grounds 1 and 2 and refused as regards proposed grounds 3, 4
and 5.
B. Costs are reserved.
C. The approved grounds are:
(1) Whether the Court of Appeal was correct to uphold the
resettlement of the balance of the old Mangaheia trust on the new
Mangaheia trust.
(2) Whether the Court of Appeal was correct to uphold the
appointment of the shares in Ponui Station to Mrs A E Couper.
REASONS
(for refusing leave)
[1] The oral hearing which we held related to proposed ground 3. We have
decided to decline leave on that ground because we are not satisfied that it is
necessary in the interests of justice to grant leave, that being the ultimate criterion
specified in s 13(1) of the Supreme Court Act 2003. Without prejudice to whether
any issue of general importance underlay the proposed ground, we do not consider
that the ground can be fairly or satisfactorily examined in this Court in the light of
the absence of a specific pleading directed to it, and in the light of the fact that no
relief by way of account of profits was sought in the second amended statement of
claim on which the case went to trial.
[2] There is accordingly no evidence directed specifically to the relief now
sought. Its absence might, in our view, cause an injustice to be done. It would, in
this case, be inappropriate for this Court to state legal principles in relatively abstract
terms and then remit the case to the High Court for further inquiry and quite
probably further evidence. All in all, the restitutionary basis upon which the remedy
now sought is founded has not been properly set up, either in the pleading or in terms
of the course which the case took at trial.
[3] The matters underlying proposed grounds 4 and 5 do not have sufficient
general or public importance, or commercial significance; nor are we brought to the
view that a substantial miscarriage of justice will or may occur unless the Court
entertains them.
Solicitors:
Wynn Williams & Co, Christchurch for Appellants
DLA Phillips Fox, Wellington for Second Respondent
Duncan Cotterill, Christchurch for Third Respondent