Application of Balding - [2025] NZHC 2220

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2025-488-000093

[2025] NZHC 2220

IN THE MATTER OF An application under s 52(1)(b) of the Trustee Act 1956

ON THE APPLICATION OF

ELIZABETH JANE BALDING AND WANDA PARK, AS TRUSTEES OF THE

SOUTHPAW TRUST for an order vesting land in the trustees

Applicants

Hearing: on the papers

Counsel:

J G A Day and L M Whitney-Hollick for applicants

Judgment:

7 August 2025

JUDGMENT OF JOHNSTONE J

(application for vesting order)

This judgment was delivered by me on 7 August 2025 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Law North Limited, Kerikeri

APPLICATION BY ELIZABETH BALDING [2025] NZHC 2220 [7 August 2025].

[1] Jane Balding and Wanda Park, as the remaining trustees of the Southpaw Trust, seek an order vesting in them, in that capacity, a residential property in Kerikeri. They also seek permission to commence their proceeding by way of originating application, and to have it determined without notice to any other party; in particular, without notice to Gary Balding, a registered owner of the Kerikeri property, or to the Trust’s beneficiaries.

Background

[2] Ms Balding, and her then husband Gary Balding, settled the Trust on 21 March 2007. They and Ms Park were its original trustees. The Trust’s primary beneficiaries were the settlors, their child and grandchildren, and any of their remote descendants. The Kerikeri property is the Trust’s only asset. It is held in the registered ownership of Ms Balding, Mr Balding and Ms Park.

[3] On 14 October 2016, Ms Balding and Mr Balding separated. On 11 June 2020, they executed a separation agreement dividing their relationship property and dealing with their interests in the Trust. Pursuant to that agreement, Ms Balding retained her interests in the Trust and the Kerikeri property. Mr Balding acknowledged he would have no entitlement to a share of the Trust’s capital or income. On the same day, they executed a deed of variation (the Deed), recording that Mr Balding would:

(I)Resign as a Trustee of the Trust;

(II)Relinquish his power of appointment in respect of the Trust (both as the trustees and beneficiaries);

(III)Be removed as a primary beneficiary of the Trust;

(IV)Be removed as settlor of the Trust.

[4] The separation agreement and the Deed thus confirm the parties’ clear intention that Mr Balding should be removed as a trustee and relinquish any powers or benefits under the Trust.

[5] However, when executing these documents in June 2020, Ms Balding did not fully understand the desirability of that intention being manifested in the removal of Mr Balding’s name from the registered title of the Kerikeri property. Since late 2022,

when she gained that full understanding, solicitors acting for Ms Balding and for Mr Balding have been unable to contact him. He has no fixed abode, and appears in recent years to have lived on a yacht sailing around the United States of America.

The applications

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 Application of Balding

Details

AGLC: Application of Balding [2025] NZHC 2220
Case: [2025] NZHC 2220
Decision Date: 7 August 2025

CaseChat Overview and Summary

The applicants in this case, Elizabeth Jane Balding and Wanda Park, trustees of the Southpaw Trust, sought an order vesting a residential property in Kerikeri in their sole ownership. This was done under s 52(1)(b)(ii) of the Trustee Act 1956, as Gary Balding, a co-owner and former trustee, was deemed to be out of the jurisdiction of the court and could not be found. The applicants also sought permission to commence their proceeding by way of an originating application, and to have it determined without notice to Gary Balding or the Trust’s beneficiaries.

The primary legal issue the court had to decide was whether the applicants could commence their proceeding by originating application and have it determined without notice to Gary Balding or the Trust’s beneficiaries. The court had to consider whether the interests of justice supported the use of an originating application and the determination of the application without notice. The court also had to determine whether Mr Balding was out of the jurisdiction or could not be found, thus satisfying the requirements of s 52(1)(b)(ii) of the Trustee Act 1956.

In its reasoning, the court first addressed the issue of whether the proceeding could be commenced by originating application. The court noted that while the proceeding was not of a kind required or permitted by the High Court Rules 2016 to be brought by originating application, the court may permit such a proceeding to be commenced if the interests of justice so require. The court found that the interests of justice supported the use of an originating application in this case, as there were no disputed factual issues or need for interlocutory steps. The court then turned to the issue of whether the application should be determined without notice. The court found that serving notice on Mr Balding would cause undue delay and prejudice to the applicants, as he had been uncontactable for over two years. The court also found that there was no need to serve notice on the beneficiaries, as the orders sought were purely administrative and did not change their rights or obligations. Finally, the court determined that Mr Balding was out of the court's jurisdiction and could not be found, thus satisfying the requirements of s 52(1)(b)(ii) of the Trustee Act 1956.

The court granted the applicants permission to commence the proceeding by originating application and to have it determined without notice to Mr Balding and the beneficiaries of the Southpaw Trust. The court also granted the vesting order, vesting the Kerikeri property in Elizabeth Jane Balding and Wanda Park. There was no order as to costs.

Orders