Albrechtsen v Albrechtsen - [2014] NZHC 872

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2013-470-499 [2014] NZHC 872

UNDER the Trustee Act 1956

BETWEEN

BARRY NEIL ALBRECHTSEN as trustee of the BN & DM Albrechtsen Family

Trust
Plaintiff

AND

DIANNE MARIE ALBRECHTSEN First Defendant

ELIZABETH MARY LAMBERT Second Defendant

Hearing: 28 and 30 April 2014

Appearances:

A H Brown for plaintiff
First and second defendants in person

Judgment:

30 April 2014

JUDGMENT OF LANG J

[on application to remove trustee]

This judgment was delivered by me on 30 April 2014 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

ALBRECHTSEN v ALBRECHTSEN [2014] NZHC 872 [30 April 2014]

[1] This proceeding concerns a trust known as the B M & D N Albrechtsen Family Trust (“the Trust”). The current trustees are Mr Barry Albrechtsen, his former wife Ms Dianne Albrechtsen, and an advisory trustee, Bailey Ingham Trustees Limited. The Trust’s only asset is an undivided one-third share that it holds in a residential property situated at Mount Maunganui (“the property”). Trusts associated with Mr Albrechtsen’s two brothers also each own a one-third interest in the property.

[2] The proceeding is now before the Court to deal with a range of issues. These relate both to the Trust and the property. Before proceeding further, it is appropriate to briefly record the background giving rise to today’s hearing.

Background

[3] The property has been used for many years as a holiday home by the families associated with the three trusts that own it. There is no formal agreement between the owners as to how rights of occupation are to be exercised. Instead, the three families have dealt with that issue through informal discussion and agreement on an apparently ad hoc basis.

[4] Mr and Mrs Albrechtsen separated in July 2007. At that point Mrs Albrechtsen moved into the property with the consent of the remaining owners. She resided there until June 2008, when she moved into other rented accommodation.

[5] On 24 December 2012, Mrs Albrechtsen resumed occupation of the property without the consent of the other owners. This prompted Mr Albrechtsen to file the present proceeding, in which he sought inter alia an injunction requiring Mrs Albrechtsen to vacate the property. Mr Albrechtsen also sought an order removing Mrs Albrechtsen as a trustee of the Trust, and an order appointing the Public Trustee to replace her as a trustee. Mr Albrechtsen also sought an order removing the power vested in Mrs Albrechtsen under the trust deed to remove and appoint trustees.

[6] Mr Albrechtsen’s application for an injunction was ultimately resolved on

20 September 2013, when counsel for both parties signed and filed a consent memorandum under which Mrs Albrechtsen agreed to vacate the property on 1
November 2013. In consideration for Mrs Albrechtsen vacating the property, Mr Albrechtsen agreed to pay her the sum of $25,000. Woodhouse J made orders in terms of the consent memorandum on 20 September 2013.

[7] Mrs Albrechtsen subsequently had second thoughts about the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 872
Decision Date: 30 April 2014

CaseChat Overview and Summary

Albrechtsen v Albrechtsen is a proceeding brought by Barry Albrechtsen, as trustee of the BN & DM Albrechtsen Family Trust, against his former wife, Dianne Albrechtsen, and another party. The case involves a dispute over a residential property in Mount Maunganui, which is jointly owned by three trusts, each associated with one of the Albrechtsen brothers. The primary issues before the court were the removal of trustees from the Trust and the setting aside of consent orders that required Mrs Albrechtsen to vacate the property. Barry Albrechtsen sought to remove Dianne Albrechtsen as a trustee and replace her with an independent trustee, due to their inability to act unanimously. The court agreed that it was appropriate to remove all existing trustees and appoint Holland Beckett (Albrechtsen) Trustee Limited as the new trustee. The court also dismissed Mrs Albrechtsen's application to set aside the consent orders, finding that her motivation for pursuing the application was for personal benefit rather than the benefit of the Trust's beneficiaries. The court made orders appointing the new trustee and vesting the Trust’s one-third interest in the property in the new trustee. The issue of costs was to be dealt with in a separate judgment.

Orders