Bartlett v Kirkpatrick - [2024] NZHC 1923

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-48

[2024] NZHC 1923

BETWEEN
MICHAEL ROBERT BARTLETT

Plaintiff

AND

BRADLEY FRANCIS KIRKPATRICK and JOHN LESLIE PURVIS

First Defendants

AND

JOHN LESLIE PURVIS and RONALD WAYNE SKEWS

Second Defendants

AND

BRADLEY FRANCIS KIRKPATRICK

Third Defendant

AND

BRADLEY FRANCIS KIRKPATRICK and JOHN LESLIE PURVIS

Fourth and Subsequent Defendants

(cont. over page)

Hearing: 1 July 2024

Appearances:

T R J Jeffcott and P M Learmonth for the Plaintiff M J Wallace for the First Defendants

M K Prendergast for the Second Defendants
G K Riach for the Third, Fourth and Subsequent Defendants
T R J Jeffcott as agent for Mr Phillips, litigation guardian for the plaintiff’s infant children

Judgment:

12 July 2024

JUDGMENT OF HARLAND J

BARTLETT v KIRKPATRICK [2024] NZHC 1923 [12 July 2024]

CIV-2020-409-261

BETWEEN

RONALD WAYNE SKEWS
Plaintiff

AND

MICHAEL BARTLETT

First Defendant

WENDY ISOBEL SKEWS

Second Defendant

SUZANNE NGAIRE SCHOLES

Third Defendant

AMANDA JANE PATERSON

Fourth Defendant

PAMELA IRENE BOWDEN

Fifth Defendant

BRADLEY FRANCIS KIRKPATRICK

Sixth Defendant

PETER GOSKAR SCHOLES

Seventh Defendant

[1] This judgment concerns the proceedings issued by Michael Bartlett (the plaintiff) against his brother Bradley Kirkpatrick (the third defendant), and three family trusts. At the heart of the proceedings is the plaintiff’s contention that he was wrongfully removed as a discretionary beneficiary from his grandmother and father’s family trusts, the Laura Kirkpatrick Family Trust and Gary Kirkpatrick Family Trust respectively. The family trusts concerned are represented in these proceedings by their trustees, who are the first and second defendants. As is evident from the pleadings, the two brothers, over the years, have become estranged and the removal of the plaintiff as a discretionary beneficiary from the two trusts is alleged to have occurred at a time when their father’s cognitive faculties were in decline. Their father was a trustee of both the first and second defendants trusts at the time.

[2] Commendably, the parties have settled the proceedings which were set down for a three-week trial commencing 5 August 2024. The parties have entered into a settlement deed, which is conditional upon the Court making orders approving the

terms of settlement and variations of two of the trust deeds, which are required as part of that settlement.

[3] In support of the orders sought approving the settlement and variation of two of the trust deeds, counsel for the parties to the proceeding, including counsel appointed as a litigation guardian for the plaintiff’s young children and the solicitor who is the executor of the plaintiff and third defendant’s late father’s purported last Will, signed and presented a joint memorandum to the Court and an agreed bundle of documents. In addition, I heard from counsel at a short hearing convened for the purpose of explaining the basis of the settlement to the Court and the orders sought.

[4] I have decided to grant the orders sought as contained in the draft order attached to counsels’ memorandum. This judgment outlines the…

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 Bartlett v Kirkpatrick

Details

AGLC: Bartlett v Kirkpatrick [2024] NZHC 1923
Case: [2024] NZHC 1923
Decision Date: 12 July 2024

CaseChat Overview and Summary

The case Bartlett v Kirkpatrick involves a dispute between Michael Bartlett and his brother Bradley Kirkpatrick concerning the removal of Michael from discretionary beneficiary status in two family trusts established by their grandmother and father. The High Court of New Zealand was tasked with deciding whether to approve a settlement agreement between the parties and variations to the trust deeds. The court considered the jurisdiction under the Trusts Act 2019, the principles of the Act, and the settlor's intentions. The court concluded that the benefits of the settlement to the minor discretionary beneficiaries outweighed any detriments and approved the settlement deed and variations to the trust deeds. The court made orders declaring Michael as a discretionary beneficiary, directing the trustees to distribute a settlement sum, transferring property interest, and varying the trust deeds accordingly. Costs in the Trust proceeding were ordered to lie where they fall, except for the reasonable costs of the litigation guardian for Michael's children, which were to be met by the trustees of the LK Family Trust.

Orders