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Bulley v Attorney-General

Bulley v Attorney-General

Case [2012] NZHC 615 2 April 2012

Statutory Interpretation

Trusts & Equity

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-463-640 [2012] NZHC 615

IN THE MATTER OF an application under ss 64 and 66 of the Trustee Act 1956 for orders in respect of the trusts of a deed dated 1 August 1994

BETWEEN DAVID ALLEN BULLEY, KEVIN JOSEPH HENNESSY, BRIAN EDWIN PONTING, PETER JAMES PATTERSON, DONNA MAREE SMIT AND WADE ROSS BROWN AS THE TRUSTEES OF THE EASTERN BAY ENERGY TRUST Applicants

ANDTHE ATTORNEY-GENERAL FOR AND ON BEHALF OF THE MINISTRY OF ENERGY
First Respondent

ANDGRAHAM PRYOR, STEPHEN TIPENE PERENARA MARR, CATHY DEWES, KENNETH RAURETI, HARINA WARBRICK, MARTIN MARR AND MEREPEKA RAUKAWA-TAIT AS TRUSTEES OF THE TE MANA O NGATI RANGITIHI TRUST
Second Respondents

Hearing: 7 - 9 February 2012

Appearances: A Molloy QC, M Beech and M King for the applicants
D Consedine (abiding) for the first respondent
C Carruthers QC and M Branch for the second respondents
D Hurd for Consumers

Judgment: 2 April 2012

JUDGMENT OF CLIFFORD J

BULLEY AND OTHERS v THE ATTORNEY-GENERAL AND OTHERS HC WN CIV-2010-463-640 [2 April
2012]

Introduction

[1] The applicants are the current trustees (“the Trustees”)1 of the Eastern Bay Energy Trust (“the Trust”), a trust for the benefit of Consumers of electricity in the (Eastern) Bay of Plenty. The terms of the Trust, including the definition of the term Consumer, are recorded in a deed of trust dated 1 August 1994 (“the Trust Deed”) made between Bay of Plenty Energy Limited (“the Company”) and the Trustees. In August 1994 the business of the then Bay of Plenty Electricity Power Board (“the Board”) was, pursuant to the Energy Companies Act 1992, transferred to the Company and five million shares in the Company - 25.03 per cent of its issued capital – were vested in the Trust.

[2] The Trust now owns 77.32 per cent of the shares in the Company, now called Horizon Energy Distribution Limited.2 The Trust may wish to acquire further, and perhaps all of the, shares in the Company.

[3] The Trustees have brought these proceedings because doubts have been raised – by reference to certain provisions of the Trust Deed – as to the lawfulness of the Trust’s current and possible future ownership of shares in the Company. The Trustees seek directions under s 66 of the Trustee Act 1956 to confirm that the Trust’s current ownership of shares in the Company is lawful in terms of the Trust Deed. If the Court declines those directions, the Trustees seek orders under s 64 of the Trustee Act giving them power to retain the Trust’s current shareholding, and to acquire further shares, in the Company.

[4] The Attorney-General abides the decision of this Court.

[5] Mr Hurd appeared to represent the interests of Consumers under the Trust
Deed pursuant to orders sought by the Trustees when they began these proceedings. Mr Hurd generally supports the outcomes sought by the Trustees.

1 In this judgment I use the term “the Trustees” to refer not only to the applicants…

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 Bulley v Attorney-General

Details

AGLC: Bulley v Attorney-General [2012] NZHC 615
Case: [2012] NZHC 615
Decision Date: 2 April 2012

CaseChat Overview and Summary

The applicants, trustees of the Eastern Bay Energy Trust, sought a declaration that the trust deed empowered them to acquire more than 25 per cent of the shares in Horizon Energy Distribution Limited, the former Bay of Plenty Energy Limited, and that they had complied with the requirements of the trust deed in acquiring 52.29 per cent of the shares in the Company from United Networks Limited. The applicants also sought an order under s 64 of the Trustee Act 1956, empowering them to retain the additional 52.29 per cent shareholding in the Company, and to acquire further, and potentially all, the shares in the Company, if they considered it to be in the best interests of the beneficiaries of the Trust. The second respondents opposed the orders sought by the Trustees. Clifford J found in favour of the Trustees on all issues. The Trust Deed did empower the Trustees to acquire more than 25 per cent of the shares in the Company, and they had complied with the requirements of the Trust Deed in acquiring 52.29 per cent of the shares in the Company from United Networks Limited. The Trustees had also been empowered to retain the additional 52.29 per cent shareholding in the Company, and to acquire further, and potentially all, the shares in the Company, if they considered it to be in the best interests of the beneficiaries of the Trust.

Orders