Bentley - [2017] NZHC 1937

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-000214

CIV-2016-419-000327 [2017] NZHC 1937

UNDER the Administration Act 1969

IN THE MATTER

of applications for orders that IAN DAVID BENTLEY and WAYNE KEITH STARTUP be removed as executors of the estate of ROY WILSON

AND UNDER

the Trustee Act 1956

IN THE MATTER

of an application for orders discharging BBTLAW TRUSTEES and WAYNE KEITH STARTUP as trustees of the ROY WILSON TRUST and the ROY WILSON NO 2 TRUST and appointing replacement trustees

Hearing: 7 June 2017

Appearances:

R Woods for Mr Bentley and BBTLaw Trustees
M Ward-Johnson for Mr Startup
J D Haig for Goldman Plaintiffs and Respondents

Judgment:

15 August 2017

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 15 August 2017 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

BENTLEY [2017] NZHC 1937 [15 August 2017]

[1] In CIV-2016-419-214 Ian David Bentley and Wayne Keith Startup have applied to be removed as executors of the estate of Roy Wilson (the removal application). The opposition to that application has recently been withdrawn.

[2] In CIV-2016-419-327 BBT Law Trustees Limited (BBT) and Wayne Keith Startup have applied to be discharged as trustees of the Roy Wilson Trust and the Roy Wilson No 2 Trust (the discharge application). That application is not opposed. Following a telephone conference with counsel on 7 June 2017 I issued a minute indicating that I would make the orders sought once counsel had confirmed the identity of the proposed new trustee(s), which counsel did by memorandum dated 4
August 2017.

Background

[3] Mr Bentley and Mr Startup, in their capacity as executors, obtained Probate and made distributions, including to the beneficiaries of RWT and RW2T in the form of forgiveness of debt. They are now facing proceedings, known as “the Goldman proceedings” in CIV-2014-419-231, in which the Goldman plaintiffs allege that the estate holds certain shares on trust for them.

[4] Mr Bentley and Mr Startup are concerned that the Goldman plaintiffs may apply to have the distributions made to RWT and RW2T repaid to meet any liability the estate may have. They perceive a consequent risk to themselves personally. Moreover, Mr Bentley has acted as solicitor to both the estate and to Mr Wilson before his death, which creates the potential for a separate conflict between him and Mr Startup. Mr Bentley and Mr Startup applied to be removed as executors on the basis of this perceived conflict. The Goldman plaintiffs have, until recently, opposed the application.

[5] This Court directed that the removal application be served on the beneficiaries of the estate, which include RWT and RW2T. Mr Startup and Mr Bentley (as the director of BBT) consider that accepting service of and dealing with the removal applications on behalf of the RWT and RW2T would represent a breach of their obligations as trustees. They accordingly applied to be discharged as trustees.

[6] The application by the executors to be…

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.

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Details

AGLC: Bentley [2017] NZHC 1937
Case: [2017] NZHC 1937
Decision Date: 15 August 2017

CaseChat Overview and Summary

Bentley and Startup applied to be removed as executors of the estate of Roy Wilson and to be discharged as trustees of the Roy Wilson Trust and the Roy Wilson No 2 Trust. The removal application was initially opposed by the Goldman plaintiffs, who were pursuing proceedings against the estate. However, they subsequently withdrew their opposition. The court was required to determine whether it was expedient to remove Bentley and Startup as executors and to discharge them as trustees. The court considered the principles governing the removal of executors and trustees, including the welfare of beneficiaries and the potential for conflicts of interest. The court found that the conflict of interest faced by Bentley and Startup made it expedient to remove them as executors and to discharge them as trustees. The court appointed the Public Trust as the new executor and trustee.

The court granted the removal application and ordered that Bentley and Startup be removed as executors of the estate of Roy Wilson, and the Public Trust be appointed as the sole executor. The court also granted the discharge application and ordered that BBT Law Trustees Ltd and Startup be discharged as trustees of the Roy Wilson Trust and the Roy Wilson No 2 Trust, and the Public Trust be appointed as the sole trustee of each trust. Costs were reserved.

Orders