Barrett v Barrett - [2025] NZHC 2746

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
Plaintiffs

AND

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…

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 Barrett v Barrett

Details

AGLC: Barrett v Barrett [2025] NZHC 2746
Case: [2025] NZHC 2746
Decision Date: 19 September 2025

CaseChat Overview and Summary

The plaintiffs, Anthony and Edward Barrett, who serve as trustees of the Kathleen Te Ata Family Trust, sought to remove Mereana Barrett as a trustee of the Trust, or alternatively, to obtain a Court order affirming the validity of their decision to remove her on 19 March 2020. They also sought to compel Beattie Rickman Legal to transfer the Trust's funds to their solicitors, Foster & Milroy. The proceedings have not been opposed by Mereana, and as a result, the Court has determined the matter by formal proof.

The central legal issues revolved around the validity of the plaintiffs' decision to remove Mereana as a trustee and whether they were entitled to direct the transfer of Trust funds held by Beattie Rickman. The Trust deed provided that the trustees had the power to remove other trustees and that in the event of a vacancy, they could appoint new trustees. It also stipulated that if there were more than two trustees, decisions could be made by a majority of 60 per cent. Following the retirement of Kurukuru Barrett in 2019, Anthony and Edward constituted more than 60 per cent of the trustees, and they passed a resolution to remove Mereana on 19 March 2020. This resolution was valid under the terms of the Trust deed, and consequently, Mereana ceased to be a trustee of the Trust. The Court found that Anthony and Edward were entitled to request Beattie Rickman to transfer the Trust funds to their solicitors, Foster & Milroy, as they were the remaining trustees. The Court directed Beattie Rickman to transfer the funds to Foster & Milroy.

The Court rejected the plaintiffs' application for indemnity costs against Mereana, ruling that she was not liable for costs beyond the 2B scale. The Court determined that Anthony and Edward would be indemnified from the Trust's assets regardless of the outcome of the costs order. The Court emphasised the importance of ordinary principles in determining the costs, and Mereana was ordered to pay the Trust costs on a 2B basis, along with disbursements.

Orders