Ash v Singh - [2017] NZHC 2909

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-589 [2017] NZHC 2909

UNDER the Trustee Act 1956

IN THE MATTER OF

an application for removal and substitution of trustees

BETWEEN

GABRIEL SEBASTIAN ASH Plaintiff

AND

MAHENDRA SINGH First Defendant

GEOFFREY HUGH BOURCHIER Second Defendant

DARSAN SINGH Third Defendant

Hearing: 19 September 2017

Appearances:

R J Thompson for the Plaintiff
A R Gilchrist for the Defendants

Judgment:

24 November 2017

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 24 November 2017 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………………………………….
Registrar/Deputy Registrar

ASH v SINGH [2017] NZHC 2909 [24 November 2017]

Solicitors:
Paterson Hopkins (W M Paterson), Auckland, for the Plaintiff
Kiely Thompson Caisley (P Kiely), Auckland, for the Defendants
Copy for:
R J Thompson, Auckland, for the Plaintiff
A R Gilchrist, Auckland, for the Defendants

[1] The plaintiff, Gabriel Ash, a beneficiary of the Shean Singh Family Trust, seeks a declaration that a deed of 23 August 1996 varying the trust has no effect and an order requiring the trustees to provide records of legal advice they have received. The trustees say that the variation is effective and that they have provided records of all legal advice which the plaintiff can require. They propose a judicial settlement conference under r 7.79 of the High Court Rules, and seek security for costs against the plaintiff. The plaintiff has applied for summary judgment.

[2] Dhirendra Singh, more commonly known as Shean Singh, was a lawyer practising in Dominion Road, Auckland. He married twice. Gabriel and his sister Olivia are children of the first marriage. Shean and his first wife separated in March 1993. He bought her out. Among the assets, he took on the division of property were commercial premises in Dominion Road, Mt Eden, where he carried on his practice, and a block of land at Redvale.

[3] The Shean Singh Family Trust was established by a deed dated

23 December 1993. Shean, the architect of the trust, designed it and drafted the deed. The settlor, Shean’s brother, Mahendra, is a medical practitioner living in Queensland. He is a nominal settlor. Shean established the trust for himself and his children.1 Mahendra and Mr Bourchier, Shean’s accountant, are the trustees. The vesting date is 23 December 2019, 26 years after the date of the deed. The final beneficiaries are Gabriel, Olivia and any other children of Shean born before the vesting date. The discretionary beneficiaries are Shean, the final beneficiaries, any child, children or grandchildren of the final beneficiaries, and any charitable object or institution in New Zealand. The deed makes no provision for any wife
or de facto partner of Shean. Under the deed the trustees shall hold the capital and

1 Shean is likely to be considered a settlor for tax purposes: Income Tax Act 2007, s HC28, Income
Tax Act 2004, s HH1 and Income Tax Act 1994,…

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 Ash v Singh

Details

AGLC: Ash v Singh [2017] NZHC 2909
Case: [2017] NZHC 2909
Decision Date: 24 November 2017

CaseChat Overview and Summary

Gabriel Ash, a beneficiary of the Shean Singh Family Trust, sought a declaration that a deed of 23 August 1996 varying the trust had no effect and an order requiring the trustees to provide records of legal advice they had received. The trustees argued that the variation was effective and that they had provided records of all legal advice which the plaintiff could require. The plaintiff had also applied for summary judgment. The legal issues for the court to decide were whether the deed of 23 August 1996 was effective and whether the plaintiff was entitled to production of documents under his fourth cause of action. The court found that the deed was ineffective as the trust deed did not contain any variation provisions that would allow the trustees or the settlor to vary the trust by adding more final beneficiaries, adding another discretionary beneficiary, or substituting the vesting provisions. The court also found that the plaintiff was not entitled to summary judgment on his fourth cause of action as the defendants had an arguable defence that they had provided copies of all legal advice (not subject to litigation privilege) relating to the administration of the trust. The court dismissed the defendants’ application for security for costs and declined to refer this file to the List Judge for a judicial settlement conference at this stage. The plaintiff was granted summary judgment on his first cause of action, except that there were no orders in terms of paragraphs (h) and (j) of the prayer for relief. The plaintiff’s application for summary judgment under the fourth cause of action was dismissed. The matters on which the plaintiff had been unsuccessful in his summary judgment application would go to a hearing.

Orders