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 assignment requires the consent of the Minister of Conservation and the trustee was to make “every effort” to obtain such consent;

(c)the residue of the estate is to be assigned to Casey and Billie as tenants in common in equal shares upon them both attaining the age of 30 years.

[8]    Ms Bennie’s view is that it is in the best interests of the beneficiaries to sell the DoC concession (and associated interest in the Barn Bay bach) and the Orepuki section.

[9]    In respect of the Barn Bay property, she says the land itself is only accessible by helicopter for most of the year. There are likely to be difficulties in transferring the concession to the two children given their ages and the practical difficulties of them accessing and maintaining the property in accordance with the terms of the concession. If the property is not maintained in accordance with the terms of the concession it is likely that the concession will not be renewed when it expires in 2028.

[10]   There are, however, two parties interested in purchasing the concession for the Barn Bay bach. Ms Bennie wishes to sell the concession as soon as possible. This will retain the current value of the concession in the estate as a cash amount. Delay in selling the concession may result in loss to the estate, including cancellation of the concession at its expiry date and involving the requirement to remove the improvements on the land (being the bach) in accordance with the terms of the concession.

[11]   Ms Bennie explains that the transfer of the interest in the Barn Bay bach is not conditional upon the children reaching 30 years of age but is conditional upon the consent of the Minister of Conservation to the transfer of the concession to them which, as she has explained, is unlikely given Casey and Billie’s ages. Furthermore, prior to her death, the deceased was in discussion with two parties regarding sale of the concession and both parties expressed strong interest in progressing the sale. Both parties who are interested in purchasing the concession have agreed to make the property available to Casey and Billie if they want to visit.

[12]   In respect of the section at Orepuki near Riverton, Ms Bennie notes that the deceased had this on the market prior to her death, and the beneficiaries have no interest in retaining it, noting that the family home in Haast, where Casey currently resides, will be retained for Casey and Billie’s use, as will the property at Lake Paringa which is a property with longstanding family links.

[13]   Ms Bennie notes that the deceased was conscious that Casey and Billie were likely to inherit significant assets at a young age. She wanted them to develop some maturity before receiving their inheritance and, except for the Barn Bay bach, it was her wish that they both attain 30 years of age before they received their inheritance. She says that if the Barn Bay bach and the Orepuki section are sold, the sale proceeds will be invested until both Casey and Billie reach 30 years of age, in accordance with the deceased’s wishes.

[14]Having discussed the matter with Casey and Billie they agree:

(a)the most practical course of action is to sell the Orepuki section to minimise ongoing costs for the estate; and

(b)the most practical course of action in respect of the Barn Bay concession is to sell it as soon as possible.

However, because only Casey is of age, he is the only one who has been able to give formal consent to these proposals.

[15]   The Will does not make specific provision for the properties to be sold and for net sale proceeds to be held on Trust for the beneficiaries until they both reach the age of 30. Accordingly, Ms Bennie applies to the Court seeking directions as to whether she can take this proposed course of action.

The Trusts Act 2019

[16]This application is made under s 133 of the Trusts Act which states:

133Trustee may apply to court for directions

(1)A trustee may apply to the court for directions about—

(a)the trust property; or

(b)the exercise of any power or performance of any function by the trustee.

(2)The application must be served, in accordance with the rules of court, on each person interested in the application or any of them as the court thinks fit.

(3)On an application under this section, the court may give any direction it thinks fit.

(4)This section does not restrict the availability of alternative proceedings within the court’s jurisdiction, including a declaration interpreting the terms of the trust.

[17]   This provision is materially similar to its predecessor, s 66 of the Trustee Act 1956, and case law on that provision assist with the interpretation of s 133.1

[18]   One situation in which the Court may give directions under this provision is where the issue is whether some proposed action is within the trustee’s powers.2 That is the situation here.

[19]   By seeking directions under s 133, Ms Bennie also has the added the protections available to her under s 134 of the Trusts Act. This section provides:

134Protection of trustee while acting under direction of court

(1)A trustee acting under any direction of the court must be treated as having discharged the trustee’s duties as a trustee in relation to the direction, even though the order giving the direction is later declared invalid, overruled, set aside, or found to be otherwise ineffective.

(2)However, subsection (1) does not indemnify a trustee for any act done in accordance with a direction of the court if the trustee has acted in bad faith in—

(a)getting the direction; or

(b)acquiescing in the court making the order or giving the direction.

Application to the present case

[20]   In terms of the Barn Bay concession, Ms Senior notes it is arguable that the express words of the Will means that the Barn Bay concession is an outright gift and sale of the property is not permitted until it vests in the named beneficiaries pursuant to the terms  of the Will.  However,  given  the  risk of losing the  concession, and  Ms Bennie’s duty as a trustee to preserve the value of the estate, Ms Bennie seeks to resolve this conflict by way of direction of the Court under s 133 of the Trusts Act.

1      Re Darlow [2021] NZHC 2184 at [30].

2      Re Honoris Trust [2017] NZHC 2957, [2018] 3 NZLR 160 at [42].

[21]   Similarly, with the Orepuki section, Ms Bennie notes that as a trustee, she has general powers under s 56 of the Trusts Act to manage trust property, including all the powers of an absolute owner of the property and this indicates she could sell that property through the general powers she holds as a trustee. However, that power is subject to the express terms of the Will.3 Taking a strict interpretation of the Will, it  is not clear that she has that power, but rather must retain the Orepuki section until the youngest beneficiary is 30.

[22]   However, there is a very real risk of the estate being depleted, to the detriment of the beneficiaries if the properties are unable to be sold. The proposed course of action seeks to minimise the risk to the estate and to minimise the ongoing administrative costs so that funds are available to maintain and support the beneficiaries as intended by the deceased.

[23]Furthermore, the directions sought accord with the deceased’s intentions as:

(a)she was in the process of negotiating the sale of both properties when she died; and

(b)the proceeds of sale will be held on trust until the beneficiaries both turn 30.

[24]In short, Ms Bennie seeks directions from the Court approving:

(a)the sale of Orepuki section using the trustee’s general powers to deal with trust property under s 56 of the Trusts Act 2019;

(b)the sale of the Barn Bay bach and associated concession in circumstances where the Will does not contemplate such an action and where the powers of the trustee are uncertain; and

(c)the net proceeds from the sale of both properties being held on trust for the benefit of Casey and Billie until they both reach 30 years of age.

3      Trusts Act, s 5(4) and sch 2.

[25]   Having considered the circumstances as outlined in Ms Bennie’s affidavit and noting the lack of an express power to sell these properties in advance of vesting them in the beneficiaries, while nevertheless respecting the deceased’s wishes as to when those properties should vest, I am readily satisfied that it is appropriate to make the directions sought.

[26]   Accordingly, I make directions authorising the following actions by the trustee and executor of the estate of Robyn Moana Hoglund:

(a)to 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)to 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.

Solicitors:

Aspiring Law Ltd, Christchurch