Barrett v Barrett
[2025] NZHC 2746
•19 September 2025
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-419-000064
[2025] NZHC 2746
UNDER High Court Rules 2016, Part 18 and Trusts Act 2019, ss 112 and 133 IN THE MATTER
of removal of trustees/trustee directions
BETWEEN
ANTHONY TAWHIWHI BARRETT and EDWARD HAMUERA BARRETT as
Trustees of the KATHLEEN TE ATA FAMILY TRUST
PlaintiffsAND
MEREANA BARRETT as trustee of the KATHLEEN TE ATA FAMILY TRUST
Defendant
Hearing: 8 September 2025 (further submissions completed 10 September
2025)
Appearances:
P Depledge for the Plaintiffs
No appearance by or on behalf of the Defendant
Judgment:
19 September 2025
JUDGMENT OF POWELL J
This judgment was delivered by me on 19 September 2025 at 4:00 pm Pursuant to Rule 11.5 of the High Court Rules
……………
Registrar-Deputy Registrar
Solicitors / Counsel:
Mr P Depledge, Barrister, Hamilton
Mr M Milroy (plaintiffs’ instructing solicitor), Foster & Milroy, Hamilton
BARRETT v BARRETT [2025] NZHC 2746 [19 September 2025]
[1] The plaintiffs, Anthony Barrett (Anthony) and Edward Barrett (Edward) as Trustees of the Kathleen Te Ata Family Trust (the Trust), have applied for orders under the Trusts Act 2019 seeking either an order removing the defendant, Mereana Barrett (Mereana),1 as a trustee of the Trust or, in the alternative, an order that:
The removal of [Mereana Barrett] as trustee by the plaintiffs following a trust meeting on 19 March 2020 was a valid exercise of their power to remove a trustee.
[2] Once Mereana has been removed, Anthony and Edward seek consequential orders transferring monies held by Beattie Rickman Legal (Beattie Rickman) to the trust account of their solicitor, Foster & Milroy, pursuant to a resolution made by them on 19 March 2020.
[3] Anthony and Edward seek the orders because they consider the Trust is at an impasse, and that will remain if Mereana remains a trustee. Likewise, the monies held by Beattie Rickman constitute the principal asset of the Trust and Beattie Rickman will only transfer the monies if Mereana agrees to the transfer or the Court otherwise orders.
[4] The proceedings have been served on Mereana, and on the identified beneficiaries of the Trust. No party has taken any steps and as a result the proceedings stand to be determined by way of formal proof.
What has happened?
[5] The Trust appears to have been originally settled by Edward on 22 January 1997. The Trust Deed provided that the initial Trustees were Mereana and Kurukuru Barrett (Kurukuru). Relevantly, with regard to the power of appointment of new trustees, cl 14 provided:
14.1.The power of appointment of new Trustees hereof shall be vested in the Trustees.
14.2.The person of persons in whom the said statutory power is vested shall also have power:
1 Due to the commonality of surname, first names are used in this judgment. No disrespect is intended.
(a)To appoint at any time or times an additional Trustee or Trustees of all or any of the trusts hereof whether or not occasion shall have arisen for appointment of a new Trustee or Trustees.
(b)To appoint a retiring or retired Trustee or any other person at any time or times an advisory Trustee of the trusts hereof.
(c)To remove by writing made by his her and their hand or hands all or any of the Trustees for the time being hereof, for any cause whatsoever and without giving any reason therefore and upon such removal to exercise the statutory power of appointing a new Trustee or Trustees as if the Trustee or Trustees so removed had died.
(d)Upon the retirement of a Trustee or Trustees of all or any of the trusts hereof to appoint a new Trustee or Trustees whether such new Trustee or Trustees be within or outside the jurisdiction of the New Zealand Courts.
(e)To appoint himself herself or themselves or any of themselves to be Trustee of all or any of the trusts hereof.
[6]Likewise, with regard to decision-making, cl 24 provided:
Majority Decisions
24.If there are at any time more than two Trustees then the decision of sixty percent or more of them shall bind all of them and be final.
[7] The sole asset of the Trust appears to have been a residential property located at 67 Tawa Street, Melville, in Hamilton. This property was, however, acquired by Mereana personally in circumstances where her solicitor was ultimately suspended for one month and paid a sum of $10,000 to the Trust in reparation. Although attempts appear to have been made to remove Mereana as a trustee after the discovery of what had happened, this did not initially occur and Mereana did not ever transfer the property back to the Trust. On the contrary, she appears to have borrowed personally against the property and when the loans were not repaid, it appears the property was ultimately sold in a mortgagee sale in 2018. Following negotiations between the parties, the net proceeds of sale after payment of the sums borrowed by Mereana, a balance of $200,383.48, was paid to Beattie Rickman to hold, Beattie Rickman having earlier received the $10,000 paid by Mereana’s solicitor on behalf of the Trust.
[8] For reasons that are not clear, no further steps were taken to hold Mereana accountable for the losses suffered by the Trust for which she appears to have been
solely responsible, nor indeed the monies retained by her at the time of settlement. Instead, she appears to have remained as a trustee and does not appear to have taken any steps to release the monies held by Beattie Rickman.
[9] At some point Anthony appears to have been listed as a trustee, although the details of his appointment have not been provided.
[10] On 27 April 2019, a deed prepared by Mereana’s solicitors recorded the retirement of Kurukuru and his replacement by Edward. This deed was executed and witnessed by all parties. The effect of this was that from 27 April 2019, the Trust had three trustees and cl 24 therefore applied, meaning that Trustee resolutions could be made by any two Trustees voting together.
[11] Accordingly, on 19 March 2020, following a trustees meeting which Mereana did not attend, a deed prepared by Anthony and Edward’s solicitors and signed by Anthony and Edward provided:2
INTRODUCTION
A.By the deed dated 22 January 1997 (“Deed”) certain trusts were declared, to be known as the Kathleen Te Ata Family Trust (“Trust”).
B.[Anthony and Edward] are the current trustees of the Trust.
C.[Anthony and Edward] have passed a resolution that the [Mereana] be removed as a Trustee of the Trust.
D.[Anthony and Edward wish] to exercise the power vested in [Anthony and Edward] by clause 14.2 of the Deed to remove [Mereana] as a trustee of the Trust.
OPERATIVE PART
1.[Anthony and Edward], in exercise of the power vested in the Appointor by clause 14.2 of the Deed, removes [Mereana] as a trustee of the Trust effective immediately.
2.[Anthony and Edward] each declare that the assets of the Trust now vest in [Anthony and Edward] jointly as trustees of the Trust upon the trusts and with and subject to the powers, discretions and obligations contained or implied in the Deed.
2 The deed is reproduced in full. The original “operative part” does not have a clause numbered as “3”.
4.All property that does not vest in [Anthony and Edward] by virtue of section 47 of the Trustee Act 1956 shall forthwith be transferred by [Mereana] to [Anthony and Edward].
5.The execution of this document once by any party shall be deemed to be an execution by that party in all capacities that the party appears in this document.
[12] Given this position, and the effect of cl 24 which meant together Anthony and Edward exercised more than 60 per cent of the vote, it is clear from 19 March 2020 Mereana ceased to be a trustee, leaving Anthony and Edward as the sole trustees. On the same day, Anthony and Edward then resolved:
1.After considering the interests of all the beneficiaries, the Trustees resolved that all trust monies held in the trust account of Beattie Rickman be paid to the trust account Foster & Milroy.
2.That the monies remain in the trust account of Foster & Milroy until further written direction from the trustees.
[13] Copies of the Deed of Trust, the Deed of Appointment and Retirement of Trustee dated 27 April 2019, the Deed of Removal of Trustee dated 19 March 2020, and copies of the trust resolutions, together with an email request to Mereana’s solicitor requesting him to notify Beattie Rickman to authorise the release of the funds held by Beattie Rickman, were forwarded to Beattie Rickman on 23 September 2020.
[14] It is not clear why the solicitors for Anthony and Edward considered it necessary to request Mereana’s solicitor to advise Beattie Rickman to release the funds, and it appears to have weakened their position. Likewise, there were no explicit references to cl 24, which would have made it clear that Mereana could be removed by Anthony and Edward acting together. As a result, on 11 November 2020 Beattie Rickman wrote to Anthony and Edward’s solicitors stating that as they held the funds on behalf of the beneficiaries, they would only release the funds pursuant to a document signed by “all trustees” or a Court order.
[15] As my analysis has made clear, this was not in fact the legal position, and it was not necessary for Beattie Rickman to require a document signed by Mereana or indeed a Court order.
[16] In the event, the present proceedings were ultimately issued, and appear to have moved with glacial slowness, to the hearing before me.
What orders are necessary?
[17] As the foregoing analysis makes clear, and in the absence of any opposition on the part of Mereana:
(a)the effect of the resolution of 19 March 2020 was to remove Mereana as a trustee of the Trust;
(b)as the only trustees remaining, Anthony and Edward were entitled to request Beattie Rickman to transfer the funds to their solicitors; and
(c)Beattie Rickman should forthwith transfer the funds to Foster & Milroy.
[18] I give directions to that effect. Given my conclusions, it is not necessary to consider the removal of Mereana by the Court.
Costs
[19] The Trust is entitled to costs against Mereana on the application. I indicated at the hearing that I would entertain an application for indemnity costs on the part of Anthony and Edward. A memorandum filed post-hearing sought indemnity costs in the sum of $34,457.50 (as against costs on a 2B basis of $20,195.50), together with disbursements of $4708.75.
[20] In seeking indemnity costs, Anthony and Edward have not made substantive submissions on why such an order would be appropriate in this case. Rule 14.6 of the High Court Rules 2016 provides that the Court may make an order for indemnity costs where:
(a) the party has acted vexatiously, frivolously, improperly, or unnecessarily in commencing, continuing, or defending a proceeding or a step in a proceeding; or
…
(c)costs are payable from a fund, the party claiming costs is a necessary party to the proceeding affecting the fund, and the party claiming costs has acted reasonably in the proceeding; or
(d)the person in whose favour the order of costs is made was not a party to the proceeding and has acted reasonably in relation to it; or
(e)the party claiming costs is entitled to indemnity costs under a contract or deed; or
(f)some other reason exists which justifies the court making an order for indemnity costs despite the principle that the determination of costs should be predictable and expeditious.
[21] Having reflected on the conduct of Mereana in the present case, it would be difficult to say that it could meet the threshold at which the Court would award indemnity costs. Rule 14.6(a), on its face, refers only to conduct within the proceeding, not conduct causing it, and Mereana has not been a participant in the proceedings. As I have concluded that she was no longer a trustee from her removal on 19 March 2020, she cannot be liable for any act subsequent that date in her capacity as a trustee. I can also see no element in this case which delayed matters reaching a formal proof hearing, or increased the cost or complexity associated with it.
[22] I also bear in mind that Anthony and Edward have acted reasonably in pursuing this litigation and have a right of indemnity from the assets of the Trust.3 This means that should the Court not order costs (be they on a scale or indemnity basis), Anthony and Edward will be indemnified from the trust assets. Likewise, an order of scale costs would entitle the plaintiffs to claim the balance from the trust fund. In other words, the question is not whether the plaintiffs are indemnified. The question is the source of the indemnity.
[23] Anthony and Edward have been successful in this case and the principle that costs should follow the event must apply. I consider ordinary principles must apply, and Ms Barrett can be liable for 2B costs only.
3 Trusts Act 2019, s 81. See Sunde v Sunde [2019] NZCA 552; and Butterfield v Public Trust [2017] NZCA 367. Clause 19.2 of the trust deed also provides that “No trustee shall be liable for any loss not attributable to dishonesty or to the wilful commission by the Trustee of an act known to the Trustees to be a breach of trust.”
Decision
[24]I make the following directions:
(a)the effect of the Trustee resolution of 19 March 2020 was to remove Mereana as a trustee of the Trust;
(b)as the only trustees remaining, Anthony and Edward were entitled to request Beattie Rickman to transfer the Trust funds held to their solicitors, Foster & Milroy; and
(c)Beattie Rickman should forthwith transfer the funds to Foster & Milroy.
[25] Mereana is to pay the Trust costs on a 2B basis in the sum of $20,195.50 and disbursements of $4,708.75, for a total of $24,904.27.
Powell J
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