Bennie - [2025] NZHC 1916

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2025-425-45

[2025] NZHC 1916

IN THE MATTER OF s 133 Trusts Act 2019

IN THE MATTER OF

Robyn Moana Hoglund

BETWEEN

MIA JOY BENNIE

Applicant

Hearing: On the papers

Appearances:

S M Senior for Applicant

Judgment:

14 July 2025

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 14 July 2025 at 2.15 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE BENNIE [2025] NZHC 1916 [14 July 2025]

[1] This is an application for directions under s 133 of the Trusts Act 2019 in respect of the administration of the estate of the late Robyn Moana Hoglund (the deceased).

[2] Specifically, the applicant, Mia Joy Bennie, who is the executor and trustee of the deceased’s will, seeks directions confirming she is able to:

(a)sell the Department of Conservation concession (concession number 64084-ACC) for the property at Barn Bay, South Westland (Record of Title Sec 2 SO 459958) and invest the net sale proceeds for the benefit of Casey Paul Guise and Billie Moana Nixon until they both attain the age of 30 years; and

(b)sell the bare land at 26 Surrey Street, Orepuki, Riverton (Record of Title SL105/282) and invest the net sale proceeds for the benefit of Casey Paul Guise and Billie Moana Nixon until they both attain the age of 30 years.

[3]On 9 June 2025 I made orders:

(a)granting leave to commence the proceedings by way of originating application; and

(b)dispensing with the requirement to serve the application on any party, noting the only adult beneficiary had provided consent to the application and, for the reasons I explained in my minute, there was no need to appoint counsel to represent the minor beneficiary’s interests.

Background

[4] The deceased died on 15 September 2024 leaving a will dated 21 June 2024 (the Will).

[5] In her Will the deceased left her entire estate to her son, Casey Paul Guise (Casey) now aged 23 years and, her daughter Billie Moana Nixon (Billie), now aged 17 years.

[6]The main assets of the estate are:

(a)a bach at Barn Bay, South Westland permitted to be erected on DoC land under the terms of the concession described at [2(a)] above (the Barn Bay bach);

(b)a section at 26 Surrey Street, Orepuki, near Riverton (the Orepuki section);

(c)a house at Pauareka Road, Haast; and

(d)a house and aircraft hangar at Lake Paringa, Haast.

[7]The Will specifies that:

(a)Casey and Billie are to receive the properties (excluding the Barn Bay bach) as “tenants in common in equal shares upon them both attaining the age of 30 years”;

(b)the interest in the bach at Barn Bay, South Westland is to go to Casey and Billie as “tenants in common in equal shares” and the DoC concession in relation to the site at Barn Bay is to be assigned to Casey and Billie “jointly in equal shares”, albeit acknowledging that such…

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 Bennie

Details

AGLC: Bennie [2025] NZHC 1916
Case: [2025] NZHC 1916
Decision Date: 14 July 2025

CaseChat Overview and Summary

This is an application for directions under section 133 of the Trusts Act 2019 concerning the administration of the estate of Robyn Moana Hoglund, deceased. The applicant, Mia Joy Bennie, who is the executor and trustee of the deceased's will, seeks directions confirming her authority to sell two properties and invest the net proceeds for the benefit of the beneficiaries until they both attain the age of 30. The properties in question are the Department of Conservation concession for the property at Barn Bay, South Westland, and the bare land at 26 Surrey Street, Orepuki, Riverton.

The legal issues the court was required to decide were whether the applicant has the authority to sell these properties before the beneficiaries attain the age of 30, despite the will not explicitly providing for such sales, and if the proceeds from the sale can be invested and held on trust until the beneficiaries reach that age. The applicant argued that selling the properties was necessary to preserve the value of the estate and in accordance with the deceased's wishes. The court considered whether the sale would be in the best interests of the beneficiaries and if it aligned with the deceased's intentions.

The court found that, although the will did not expressly permit the sale of the properties before the beneficiaries attain the age of 30, the applicant’s proposed actions were necessary to preserve the value of the estate and were in line with the deceased's intentions. The court granted the directions sought, allowing the applicant to sell the properties and invest the net proceeds for the benefit of the beneficiaries until they both reach the age of 30.

The final orders were that the applicant could sell the Department of Conservation concession for the property at Barn Bay, South Westland, and invest the net sale proceeds for the benefit of Casey Paul Guise and Billie Moana Nixon until they both attain the age of 30 years. Additionally, the applicant was authorised to sell the bare land at 26 Surrey Street, Orepuki, Riverton, and invest the net sale proceeds for the benefit of Casey Paul Guise and Billie Moana Nixon until they both attain the age of 30 years.

Orders