Barraclough

[2017] NZHC 2547

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CIV-2017-419-243 [2017] NZHC 2547

UNDER

s 46 of the Trustee Act 1956

IN THE MATTER

of the Retirement of the Trustee of the Kenrick and Slater Business Trust and the Kenrick and Slater Family Trust

APPLICATION OF

JOHN CHARLES REGINALD BARRACLOUGH

Applicant

Hearing:	18 October 2017
Appearances:	K Shaw for the Applicant D Taylor for Mr B M Slater
Judgment:	18 October 2017

JUDGMENT OF WOODHOUSE J

Solicitors:

Ms K F Shaw, Harkness Henry, Solicitors, Hamilton

Mr D Taylor, Barrister, Hamilton

Mr S Scott (Mr Slater’s instructing solicitor), Bogers Scott and Shortland, Solicitors, Hamilton
Copy to:

Mrs S M Kenrick, Hamilton

Public Trust

RE BARRACLOUGH [2017] NZHC 2547 [18 October 2017]

[1]      Mr Barraclough has applied for orders relating to two trusts in respect of which Susan Kenrick and Brett Slater have powers of appointment.   The orders sought are:

(a)      Discharging him of his trusts in respect of the Kenrick and Slater Business Trust and the Kenrick and Slater Family Trust (the Trusts) and from all liability in respect of the Trusts.

(b)      Appointing the Public Trust as trustee of the Trusts. (c)           Approving his costs.

[2]      In  accordance  with  earlier  directions  as  to  service  of  this  originating application, the application has been served on Mrs Kenrick, Mr Slater and the Public Trust.  Mrs Kenrick and the Public Trust have not taken any steps in response.

[3]      A notice of opposition has been filed by Mr Slater.   Mr Slater does not oppose Mr Barraclough’s application to be discharged from the Trusts and liability and  for  costs,  but  he  is  opposed  to  the  appointment  of  the  Public Trust.    The opposition is founded on Mr Slater’s preference for the appointment of Kim Scott Thompson as trustee in substitution for Mr Barraclough.  There is a consent from Mr Thompson, produced as an annexure to an affidavit from Mr Slater.

[4]      Mr Taylor, for Mr Slater, submitted that, as there was no opposition from Mrs Kenrick, it would be appropriate to appoint Mr Thompson, rather than the Public Trust, as trustee.

[5]      Mr Barraclough’s  position is that he is not concerned  as  to whether the replacement trustee is Mr Thompson or the Public Trust.   However, as Ms Shaw submitted, the fact that Mrs Kenrick has not opposed the appointment of the Public Trust does not mean that the Court can  assume that she is not opposed to the appointment of Mr Thompson.   There is also evidence, referred to in Mr Barraclough’s original affidavit in support, that Mrs Kenrick was “not happy” with

the appointment of Mr Thompson.   These matters had been fully addressed in a memorandum for Mr Barraclough filed and served before the hearing.

[6]      Although these matters were put clearly before Mr Slater before this hearing, no steps had been taken by or on behalf of Mr Slater to address the issue in advance of the hearing.   Mr Taylor, for Mr Slater, simply submitted that it would be appropriate to appoint Mr Thompson because Mrs Kenrick had not filed a notice of opposition.

[7]      The course proposed for Mr Slater cannot properly be taken.  The issue is not simply one of convenience.   It bears on Mrs Kenrick’s rights as a person with a power of appointment and her right to have proper notice of an application different from the application that was served on her.

[8]      Following discussion with Mr Taylor, he submitted that the alternative was to adjourn the present proceeding for two weeks, to enable instructions to be taken from Mr Slater as to whether he would now withdraw his opposition to the appointment of the Public Trust, or make a separate application for appointment of Mr Thompson with that to be served in the usual way on Mrs Kenrick as well as Mr Barraclough (and possibly also the Public Trust).  I was satisfied that that also is not a reasonable course to take.  Mr Barraclough is entitled to have his application dealt with without further delay and without his incurring further costs.

[9]      Following   further   discussions   with   Mr  Taylor,   he   accepted   that   the appropriate course would be to make an order appointing the Public Trust.  Mr Slater will then be in a position to decide whether he wishes to bring his own application or leave the Public Trust as trustee.

[10]     Accordingly, I make the orders as sought in the originating application.  In addition, in respect of the application for costs, Mr Barraclough’s actual costs to date of  $4,138.76  are  approved  for  payment,  together  with  further  reasonable  costs through to the hearing before me, sealing the orders, and any further costs in respect of the following steps.  The particulars of the further costs are to be provided to Mr Slater’s solicitors, before the order is sealed, for approval or objection.  If there is an

objection the matter is to be determined, in the first instance, by the Registrar on the basis that Mr Barraclough is entitled to be reimbursed for actual costs incurred, in addition to the sum of $4,138.76, provided they are assessed by the Registar as

reasonable.

Woodhouse J