Alexander v Alexander - [2021] NZHC 3056

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-002433

[2021] NZHC 3056

UNDER
Part 18 of the High Court Rules 2016,

Trustee Act 1956 and the inherent jurisdiction of the Court

IN THE MATTER OF

an application for orders under the Trustee Act 1956 and other equitable relief under Part 18 of the High Court Rules

BETWEEN

MAREE THERESE ALEXANDER

Plaintiff

AND

KAREN MARY ALEXANDER,

BENJAMIN DOMINIC ALEXANDER- WITTY and CHRISTOPHER ASHTON

ALEXANDER-WITTY as trustees of the S E BROWN FAMILY TRUST

Defendants

Hearing: 26 October 2021

Appearances:

J J Pietras for Plaintiff

V Bruton QC and R Dellow for Defendants

Judgment:

11 November 2021

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 11 November 2021 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Thomas Dewar Sziranyi Letts, Lower Hutt Thorn Law/V Bruton QC, Auckland

Introduction

[1] The plaintiff, Maree Alexander (“Maree”), and the first named defendant, Karen Alexander (“Karen”), are sisters. Since their late mother, Sylvia Brown (“Sylvia”), passed away on 7 June 2018, they have been in dispute, initially about her estate and, more recently, about the S E Brown Family Trust (the “Trust”).

[2] The second and third named defendants, Christopher Alexander-Witty (“Christopher”) and Benjamin Alexander-Witty (“Benjamin”), are Karen’s children (and the grandchildren of Sylvia). They, together with Karen, are the current trustees of the Trust.

[3] These proceedings concern the Trust. When the matter came to hearing, Maree and Karen largely agreed on the orders that were necessary. They disagreed however on who should meet the costs incurred by Karen, Christopher and Benjamin in dealing with Maree’s claims in relation to the Trust. To put this dispute in context, it is necessary to set out the background.

Factual background

[4] Both Maree and Karen were born to Sylvia in the early 1950s. Karen is the older daughter by two years. Sylvia and her husband separated shortly before Maree was born and Sylvia largely brought up the girls by herself. It appears that the family initially enjoyed a reasonably close relationship, although this deteriorated over the years.

[5] Maree married and, in or about 1990, Sylvia lent her various sums of money. In particular:

(a)when Maree was separating from her husband, Sylvia lent her sufficient money to assist her in buying out her husband’s share of the family home; and

(b)when Maree’s car was stolen, Sylvia lent her money to assist her in buying a new car.

[6] At some stage, likely in or around 2004, Sylvia and Maree fell out. Thereafter, it seems that they were largely estranged, although there are competing assertions in this regard.

[7] The Trust was settled by Sylvia on 5 September 2005. At the time she was living in Porirua. A solicitor, Eugene Collins, acted on her behalf and he drew up the trust deed. Relevantly, it provided as follows:

(a)the initial trustees were Sylvia and CMS Trustees Ltd…

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.

Continue reading Alexander v Alexander

Details

AGLC: Alexander v Alexander [2021] NZHC 3056
Case: [2021] NZHC 3056
Decision Date: 11 November 2021

CaseChat Overview and Summary

In Alexander v Alexander, the plaintiff, Maree Alexander, and the first defendant, Karen Alexander, sisters and daughters of the late Sylvia Brown, were in dispute over the distribution of Sylvia's estate and the S E Brown Family Trust. The court was required to decide whether the trustees of the Trust, Karen and her children, had a duty to provide Maree with all Trust documents and whether they had acted impartially. The court also needed to determine if the trustees were entitled to reimbursement of costs from the Trust fund and if the costs incurred by them were reasonably incurred.

The court found that the trustees had ultimately provided Maree with all relevant documentation, rendering the first cause of action moot. However, the court agreed that the matter should be resolved by either the court stepping into the shoes of the trustees and distributing the Trust assets or by appointing a replacement professional trustee. The court also found that trustees are entitled to reimbursement from the Trust funds for expenses or liabilities that they have reasonably incurred when acting reasonably on behalf of the Trust. The court held that the trustees did not act dishonestly or in wilful breach of the Trust, and that the costs incurred were reasonable. However, the court found that costs incurred in considering and pursuing a settlement involving a distribution amongst only some of the beneficiaries, without considering the interests of other beneficiaries, were not reasonably incurred by either Maree or the trustees.

The court made the following orders: (a) Karen, Christopher and Benjamin be removed as trustees of the Trust and that Perpetual Trust Ltd be appointed as a trustee of the Trust in their place; (b) certain costs be payable out of the Trust fund; (c) the balance of the invoices be met by the trustees personally, on a joint and several basis; and (d) 25 per cent of Maree's costs be met out of the Trust fund, and the balance be met by her personally.

Orders