Brown v Perpetual Trust Limited - [2022] NZHC 1726

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2366

[2022] NZHC 1726

UNDER
Part 18 of the High Court Rules and the

inherent jurisdiction of the High Court to supervise trusts

IN THE MATTER OF

a breach of trust

BETWEEN

TIGER ALEXANDER BROWN

Plaintiff

AND

PERPETUAL TRUST LIMITED

as administrator of the Estate of ALEXANDER GAVIN BROWN

Defendant

Hearing: 13 June 2022

Appearances:

Mark Sandelin for the Plaintiff

NL Walker and BHS Walley for the Defendant

Judgment:

20 July 2022

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

This judgment was delivered by me on 20 July 2022 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Morris Legal (Georgia Angus/Sally Morris), Auckland, for the Plaintiff
Russell McVeagh (NL Walker/BHS Walley), Wellington, for the Defendant
Counsel:
Mark Sandelin, Mills Lane Chambers, Auckland, for the Plaintiff

TIGER ALEXANDER BROWN v PERPETUAL TRUST LIMITED [2022] NZHC 1726 [20 July 2022]

Introduction

[1] The plaintiff, Tiger Brown, is the son of the deceased Alexander Brown.1 At the time of Alexander’s death, there were four residential properties (the Properties) in respect of which Alexander had executed declarations of bare trust in favour of Tiger.

[2] On Alexander’s death, the defendant, Perpetual Trust Ltd (Perpetual) was appointed as administrator of his estate. Consequently, it is the current trustee of the bare trusts. It has signalled its view that the Properties are held on bare trust for Tiger but has declined to transfer the Properties to him. Tiger claims against Perpetual for transfer of the Properties, alleging breach of trust.

[3] The relevant background is that Alexander’s widow (who is also Tiger’s mother), Ms Rong Kang (Ms Kang) has brought an application for recall of letters of administration and grant of probate. Pending determination of that application, Perpetual seeks a temporary stay of Tiger’s claim, and a stay of Tiger’s concurrent application for summary judgment.

Background

[4] Alexander appeared to have died intestate. On 16 March 2021, Perpetual was granted letters of administration for Alexander’s estate.

[5]The beneficiaries of Alexander’s estate are his:

(a)widow, Ms Kang; and

(b)children, Gavin Brown, Julia Dobson, Natalie Brown and Tiger.

1 Given the commonality of surnames, I will refer to the Browns by their given names throughout this judgment.

[6] Before applying for letters of administration, Perpetual attempted to locate Alexander’s will. It asked the beneficiaries for any information that would assist. Only Gavin responded, confirming he was not aware of any will.

[7] Once Perpetual was granted letters of administration, it began to investigate the estate’s assets. On 6 April 2021, it wrote to the beneficiaries seeking information about the assets. Tiger responded several weeks later, disputing the Properties formed part of Alexander’s estate. Tiger and Perpetual continued to exchange letters over the ensuing months, with Tiger stating he would commence proceedings if the Properties were not transferred to him.

[8] On 17 September 2021, Perpetual advised Tiger its…

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

Case: [2022] NZHC 1726
Decision Date: 20 July 2022

CaseChat Overview and Summary

In the matter of a breach of trust, Tiger Alexander Brown claims against Perpetual Trust Limited, as administrator of the Estate of Alexander Gavin Brown, alleging breach of trust in relation to four residential properties. Tiger seeks summary judgment and transfer of the properties to him. Perpetual seeks a stay of the proceedings until a permanent executor or administrator is appointed. The court must determine whether to stay the proceedings pending resolution of the permanent executor or administrator of the estate. The court considers whether Perpetual has the power to transfer the properties, whether the transfer could cause prejudice or be an abuse of process, the prejudice to Tiger if the stay is granted, and overall considerations of cost, convenience, and the interests of justice. The court finds that Perpetual does have the power to transfer the properties, but it is premature for it to do so given its status as administrator is yet to be determined. There is a risk of prejudice to Perpetual and the beneficiaries of the estate if the properties are transferred before the issue of the permanent executor or administrator is resolved. The prejudice to Tiger if the stay is granted is not substantial as the stay is only until the issue of the permanent executor or administrator is determined. Overall considerations of cost, convenience, and the interests of justice weigh in favour of granting the stay. The court makes an order staying the proceeding pending determination of the extant application for recall of letters of administration and for grant of probate or the conclusion of any other Court process that determines who should be the administrator or executor of the estate of Alexander Gavin Brown, and awards costs to Perpetual on a 2B basis.

Orders