Bond v Platun - [2016] NZHC 3038

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2015-404-000628

[2016] NZHC 3038

BETWEEN
RICHARD PAUL BOND

Plaintiff

AND

JANET EUGENIA PLATUN

Defendant

Hearing:
21 and 22 March 2016

Memoranda 12 April 2016 - 26 July 2016

Appearances:

R Harrington for the Plaintiff The Defendant in Person

Judgment:

14 December 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 14 December 2016 at 9.30 am pursuant to Rule 11.5 of the High Court Rules

…………………………………………………………………… Registrar/Deputy Registrar

Counsel:
R Harrington, Barrister, Auckland

Party:
Copy for Defendant

BOND v PLATUN [2016] NZHC 3038 [14 December 2016]

[1] Following the tragic death of Theresa Platun, a trust was settled to benefit her de facto partner and her seven-day-old child, Athena. Theresa’s partner (the plaintiff) and Theresa’s sister (the defendant) are the trustees. The plaintiff is now seeking to remove the defendant as trustee. As a lesser alternative, the plaintiff has applied for both trustees to be removed, and an independent trustee appointed.

[2] The key issues are whether the defendant has not acted impartially and/or the defendant has taken an inflexible position on retention of capital and/or the management of the trust is dysfunctional, such that the Court should exercise its discretion under s 51(1) of the Trustee Act 1956.

[3] This case has taken an unusual course because, with my encouragement, the parties tried to resolve the dispute after the hearing, in the hope that the additional issue of access to Athena could also be resolved. This led to a series of memoranda over some months and several judicial telephone conferences. Ultimately, no resolution was reached. As I advised the parties at the outset, I have not taken any of these post-trial matters into account.

The law

[4] Cases such as this turn very significantly on the facts. However, it is important to understand the legal framework so that the facts can be viewed through it.

[5] The plaintiff relies on s 51 of the Trustee Act 1956 and the inherent jurisdiction of the Court to supervise trusts.

[6] The Court has jurisdiction under s 51 of the Trustee Act 1956 to appoint and substitute trustees, which includes the power to remove by substitution. That section relevantly provides:

51 Power of court to appoint new trustees

(1) The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

(2) In particular and without prejudice to the generality of the foregoing provision, the court may make an order appointing a new trustee in substitution for a trustee who—

(a)has been held by the court to have misconducted himself in the administration of the trust; or

(b)is convicted of a crime involving dishonesty as defined by section 2 of…

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 Bond v Platun

Details

AGLC: Bond v Platun [2016] NZHC 3038
Case: [2016] NZHC 3038
Decision Date: 14 December 2016

CaseChat Overview and Summary

Bond v Platun is a case involving a trust established for the benefit of the plaintiff, Richard Paul Bond, and his daughter with the late Theresa Platun, Athena. The trust was established by deed dated 26 May 2005, with Bond and Janet Platun, Theresa's sister, as trustees. The primary dispute in the case revolves around Bond's attempt to remove Platun as a trustee, or alternatively, for both trustees to be removed and an independent trustee appointed. The case was heard over two days in March 2016, with memoranda submitted in July 2016. The key legal issues in the case were whether Platun had not acted impartially, whether she had taken an inflexible position on retention of capital, or whether the management of the trust was dysfunctional, such that the court should exercise its discretion under s 51(1) of the Trustee Act 1956 to remove her as a trustee. The court found that none of these allegations were made out to the extent required for purposes of s 51. The court dismissed Bond's application.

Orders