Barrett v Southee
[2016] NZHC 1461
•28 June 2016
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV-2015-463-169 [2016] NZHC 1461
BETWEEN BRENDAN COLIN BARRETT
SAMANTHA JAYNE BARRETT PAULA MARIE BARRETT
Plaintiffs
AND
CASEY ANN SOUTHEE First Defendant
SOVEREIGN ASSURANCE COMPANY LIMITED
Second Defendant
Hearing: 28 June 2016 Counsel:
M D Branch for plaintiffs
No appearance for first defendantJudgment:
28 June 2016
ORALJUDGMENT OF KATZ J [Formal proof]
Solicitors: Harkness Henry, Lawyers, Hamilton
Copy to: C A Southee
Sovereign Assurance Company Limited
BARRETT & ORS v SOUTHEE & ANOR [2016] NZHC 1461 [28 June 2016]
[1] The plaintiffs are the current trustees of the Daniel Barrett Family Trust (“Trust”). They seek Judgment by way of formal proof against the first defendant, Casey Southee. The second defendant, Sovereign Assurance Company Limited, (“Sovereign”) abides the decision of the Court.
[2] The plaintiffs obtained an order for substituted service on Ms Southee on
12 February 2016 and service was affected on her by email on 15 February 2016. An affidavit of service has been provided to the Court.
[3] Ms Southee did not file a statement of defence within the required period. Pursuant to r 15.9(3) of the High Court Rules, she was no longer entitled to file a statement of defence once the matter had been listed for formal proof, without leave of the Court. In order to obtain such leave Ms Southee would need to show that there will or may be a miscarriage of justice if judgment by default is entered.
[4] No leave to file a statement of defence has been sought. I was, however, provided with an email from Ms Southee shortly before Court this morning seeking a three month adjournment to enable her to file a defence, on the basis that she is currently recovering from childbirth. Her email did not explain the extensive delays that have occurred since she was served in February. Nor did it provide any details of her proposed defence. There is therefore nothing to suggest that there would be a miscarriage of justice if judgment were entered by default.
[5] One of the plaintiffs, Brendan Barrett, has filed an affidavit in support of the formal proof application. My below summary of the factual background is based on his undisputed evidence.
[6] Ms Southee is a former trustee of the Trust. She was previously in a relationship with Daniel William Barrett (“Daniel”), Mr Barrett’s son.
[7] On 19 August 2013, Mr Barrett settled the Trust with $100.00 by trust deed (“Trust Deed”). Daniel and his then partner, Ms Southee, were appointed trustees and consented to becoming trustees on the terms set out in the Trust Deed.
Mr Barrett was appointed as Appointor. Mr Barrett was present when Ms Southee signed the Trust Deed. Clause 13.2 of the Trust Deed permits Mr Barrett, as Appointor, to remove any trustee and sign all documents required to transfer trust assets. In particular, the Trust Deed provides:
PARTIES
Brendan Colin Barrett (“the Settler”) Daniel William Barrett (“the Trustees”) Casey Ann Southee
INTRODUCTION
AThe Settlor wishes to provide for the benefit of certain persons or objects and for that purpose to create the trusts declared in this deed.
BThe Trustees have consented to become the Trustees on the terms set out in this deed.
CThe Settlor had paid into the joint names of the Trustees the sum of One Hundred Dollars ($100.00) to be held by the Trustees as part of the Trust Fund it being anticipated that the Trust Fund may be added to from time to time.
…
1.1 Definitions
“Appointor” Brendan Colin Barrett
…
13.2 Appointor’s powers
The person in whom the power of appointment is vested shall have power at any time to:
(a) Appoint an additional Trustee of Trustees whether or not occasion shall have arisen for the appointment of a new Trustee of Trustees.
(b) Appoint any person or persons as Advisory Trustee.
(c) Appoint himself, herself or themselves to be a Trustee or
Trustees.
(d) Remove any existing Trustee including any Advisory Trustee provided that if such removal will result in the number of continuing Trustees being reduced below one natural person or one corporate Trustee this power of removal shall be exercisable only in conjunction with the appointment of a
new Trustee or new Trustees so that there shall be at all times following the exercise of any power under this clause
13.2(d) at least one Trustee who is a natural person or one corporate Trustee.
(e) Any removed Trustee under clause 13.2(d) irrevocably appoints the Appointor their attorney for the purposes of signing all documents necessary to vest title of trust assets in the names of the continuing trustees.
[8] On 15 September 2013, Mr Barrett settled a life insurance policy issued by Sovereign on the Trust, as recorded in the Trust Minutes of that date. The application form was filled in by Ms Southee and Daniel, as trustees. Throughout the existence of the life insurance policy Mr Barrett has paid and then gifted the premiums for the policy to the Trust.
[9] The relationship between Ms Southee and Daniel subsequently ended and, on
15 December 2013, Ms Southee was removed as a trustee of the Trust. She was replaced with Paula Marie Barrett. This was done pursuant to Mr Barrett’s powers as Appointor under the Trust Deed.
[10] On or about 23 January 2014 Ms Southee refused to sign documents to transfer the legal ownership of the life policy from her to the new trustees of the Trust.
[11] In February 2014, and subsequently, the Trustees resolved to maintain the insurance policy and Mr Barrett continued to pay the premiums and gifted them to the Trust.
[12] Daniel died on 2 August 2015. On or about 5 September 2015, Daniel was replaced as a trustee by Mr Barrett and Samantha Barrett. On 12 October 2015, Mr Barrett (using the power of authority clause in the Deed) duly completed a change of ownership form in respect of the life policy and provided this to Sovereign. Sovereign has, however, refused to process the change of ownership form, given Ms Southee’s refusal to sign documents to transfer the legal ownership of the life policy to the new trustees.
[13] In light of the evidence I have summarised (and as more fully set out in
Mr Barrett’s affidavit) I am satisfied that:
(a) Ms Southee was formerly a trustee of the Trust;
(b) she was removed as a trustee on 15 December 2013;
(c) the current trustees are Mr Barrett, Samantha Barrett and Paula
Barrett;
(d)the life insurance policy is a Trust asset, held by the plaintiffs for the beneficiaries of the Trust; and
(e) the legal ownership of the life insurance policy should be transferred to the plaintiffs as current trustees of the Trust.
Result
[14] I make the following orders:
(a) I declare that Ms Southee holds the life policy on trust for the beneficiaries of the Daniel Barrett Family Trust.
(b) I order that:
(i)Ms Southee is to execute such documents as are required by Sovereign to transfer her interest in the life policy, or any funds due under the life policy, to the plaintiffs. If she does not do so, Mr Barrett is authorised to execute such documents on her behalf.
(ii)Sovereign is not to pay any proceeds due under the life policy without the written agreement of the plaintiffs.
(iii) Ms Southee is to pay the costs of these proceedings on a 2B
scale basis, together with disbursements as fixed by the
Registrar.
Katz J
0
0
0