Ballantyne v Ballantyne - [2021] NZHC 1190

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-000310

[2021] NZHC 1190

BETWEEN
EUGENIA JOCELYN BALLANTYNE AND WALLACE ROTOHIKO JONES AS TRUSTEES OF THE TUNKU FAMILY

TRUST
Applicants

AND

ANTHONY BALLANTYNE AS TRUSTEE OF THE TUNKU FAMILY TRUST

Respondent

Hearing: 30 March 2021

Appearances:

D O O’Neill & H J Mills for Applicants Respondent in person (via AVL)

Judgment:

26 May 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 26 May 2021 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
North End Law, Hamilton

BALLANTYNE & ANOR v BALLANTYNE AS TRUSTEE OF THE TUNKU FAMILY TRUST [2021] NZHC 1190 [26 May 2021]

Introduction

[1] Eugenia Ballantyne (Mrs Ballantyne) and Wallace Jones (together, the applicants) apply under Part 18 of the High Court Rules 2016 (HCR) for orders under the Trustee Act 1956 (the Act). The applicants seek to:

(a)Remove Mr Anthony Ballantyne (the respondent), as a trustee of the Tunku Family Trust (the Trust);

(b)Vest the trust property in the continuing trustees of the Trust; and

(c)Authorise the following transactions:

(i)Distribute 66 MacDonald Road, Hamilton (the Hamilton Property) to Mrs Ballantyne;

(ii)Sell 202 Achilles Avenue, Whangamata (the Whangamata Property);

(iii)Make an adjustment payment to Mrs Ballantyne;

(iv)Pay rates arrears and penalties from the respondent’s share;

(v)Determine the issue of costs, including who pays the cost of legal fees, valuation costs and the real estate agent’s commission; and

(vi)Distribute the balance to the respondent.

[2] Mr Ballantyne opposes the applicants’ application to remove him as a trustee of the Trust. He agrees to the sale of the Whangamata and Hamilton properties. However, he says he will abide the decision of this Court on the issues.

Background

[3]The Trust’s assets comprise:

(a)The Hamilton Property, valued at $750,000; and

(b)The Whangamata Property, valued between $1,050,000 to $1,500,000 (the recommended listing price for sale is $1,190,000) (together, the Trust Property).

[4] Mr and Mrs Ballantyne were married on 26 September 1975. They have four adult children and three grandchildren. They separated on 3 November 2004 and their marriage was dissolved on 15 January 2007. When they separated, they agreed that Mr Ballantyne would live at the Trust’s property at Whangamata and that Mrs Ballantyne would live at the Hamilton property.

[5] The Trust was established by a deed dated 1 September 1998. The settlors of the Trust were Mrs Ballantyne and the respondent. Together with Mr Wallace Jones both are also the trustees of the Trust. The discretionary beneficiaries of the Trust are Mrs Ballantyne and Mr Ballantyne, their children and grandchildren, and other persons, corporations, trusts or entities as may be determined by the trustees. The trust deed states that the trustees are to pay or apply the income and capital of the trust in their absolute discretion at any time before the date of distribution towards the maintenance, education, advancement wellbeing or benefit in any way of the discretionary beneficiaries.

[6]…

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 Ballantyne v Ballantyne

Details

AGLC: Ballantyne v Ballantyne [2021] NZHC 1190
Case: [2021] NZHC 1190
Decision Date: 26 May 2021

CaseChat Overview and Summary

Eugenia Ballantyne and Wallace Jones sought orders under the Trustee Act 1956 to remove Anthony Ballantyne as a trustee of the Tunku Family Trust and vest the trust property in the continuing trustees. They also sought orders to authorise the sale of two properties held by the Trust, distribute the properties between themselves and Anthony Ballantyne, and allocate responsibility for costs. The key issues were whether Anthony Ballantyne should be removed as a trustee, whether the Trust property should be vested in the continuing trustees, what directions should be made regarding the Trust property, and the costs order. The Court found that Anthony Ballantyne should be removed as a trustee because his refusal to cooperate in selling a property and failure to pay rates put the Trust property at risk. The Court also found that vesting the Trust property in the continuing trustees was in the best interests of the beneficiaries. The Court authorised the sale of the property, distribution of the Hamilton property to Eugenia Ballantyne, and an adjustment payment to her from the proceeds of the sale. However, the Court declined to make an order that Anthony Ballantyne pay the applicants' legal costs, finding that was a matter for the costs order to be made following the receipt of costs memoranda and submissions from the parties. The Court made orders removing Anthony Ballantyne as a trustee, vesting the Trust property in the continuing trustees, authorising the sale of a property, distribution of the Hamilton property, and an adjustment payment to Eugenia Ballantyne from the proceeds of the sale. The Court also reserved costs.

Orders