Burnett Mount Cook Station Charitable Trust - [2017] NZHC 169

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2016-476-000026 [2017] NZHC 169

IN THE MATTER OF
BURNETT MOUNT COOK STATION

CHARITABLE TRUST

BETWEEN

THE PUBLIC TRUSTEE Substituted Applicant

MICHAEL ASKIN, TRUSTEE OF THE BURNETT MOUNT COOK STATION CHARITABLE TRUST

Original First Applicant

JOSEPH GORDON BUTTERFIELD DEREK JOHN TAYLOR

EUWAN BOYD LINDSAY HILSON Original Second Applicants

THE ATTORNEY-GENERAL GUIDE HILL STATION LIMITED LINDA BEVERLEY SUNDBERG JANINE NORA SUNDBERG CLINT MILES

ALANA MILES DAVID GOULD

Parties Directed to be Served

NEVILLE JOHN CUNNINGHAM MOUNT COOK TROPHY HUNTING LIMITED

MAUREEN MYRA VANCE DAVID MICHAEL LAWRY ROYAL FOREST AND BIRD PROTECTION SOCIETY OF

NEW ZEALAND INCORPORATED KATRINA GRIFFITHS

Subsequent Parties (Objectors)

Hearing: Dealt with on the papers

Counsel/ Representation:

R J Hopkins for Substituted Applicant - Public Trustee
A Powell and A Dixon for Attorney General
J V Ormsby, H T Shaw and S D Campbell for Original First and
Second Applicants

P J Page for Guide Hill Station Limited

RE BURNETT MOUNT COOK STATION CHARITABLE TRUST [2017] NZHC 169 [16 February 2017]

G A Hair and M J McKay for L and J Sundberg

T J Castle for N Cunningham and Mount Cook Trophy Hunting
Limited
P Anderson for Royal Forest and Bird Protection Society of
New Zealand Incorporated
N Cunningham - Appearing in Person and for Mount Cook
Trophy Hunting Limited - T J Castle

K Griffiths M M Vance D Lawry

J Finlayson
Professor H Tane

Judgment:

16 February 2017

JUDGMENT OF GENDALL J As to Costs

[1] In a decision I gave in this proceeding on 8 November 2016 I reached the following conclusions at para [138] of that decision:

(a) The charitable objects of the Trust outlined in cl 5.1 of the Trust Deed, given the ordinary meaning of the words used, and taking into account the prevailing context and the other supporting evidence here, do not demand continual ownership of the Property by the Trust.

(b) If the trustees of the Trust determine that a sale of the Property is in the best interests of the Trust, bearing in mind its charitable objects, then such a sale can be achieved whilst still adhering to those objects.

(c) This sale would be consistent with the charitable objects of the Trust if, for example, it was subject to a registered encumbrance running with the land being entered into by the purchaser whereby at all times owners of the Property were required to adhere to and fulfil all the objects of the Trust. Clearly this is achievable as the Gould Sale Agreement confirms.

(d) The Trustees have general power to enter into a sale of the Property as an asset of the Trust in terms of cl 7.1 of the Trust Deed.

(e) The charitable objects of the Trust, as I see it, could be achieved after a sale not only in relation to the Property itself but also in relation to its “surrounds” being neighbouring areas and the general district.

(f) Following any sale of the Property the Trust…

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.

Keep reading for free

Create a free CaseChat account to read Burnett Mount Cook Station Charitable Trust and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 169
Decision Date: 16 February 2017

CaseChat Overview and Summary

Burnett Mount Cook Station Charitable Trust was the subject of a proceeding before the High Court of New Zealand, which involved a dispute over the sale of a property owned by the Trust. The Public Trustee was substituted as the applicant following the initial hearing, and various parties sought costs against each other. The court had to decide whether the sale of the property was in line with the charitable objects of the Trust, and if so, whether the sale could proceed. The court also had to determine the costs of the proceeding.

The legal issues the court was required to decide included whether the sale of the property was consistent with the charitable objects of the Trust, and if so, whether the sale could proceed. The court also had to decide on the costs of the proceeding, including whether the Public Trustee was entitled to reimbursement of costs and disbursements from the assets of the Burnett Mount Cook Station Charitable Trust.

The court held that the charitable objects of the Trust did not demand continual ownership of the property by the Trust, and that if the trustees determined that a sale was in the best interests of the Trust, then such a sale could be achieved while still adhering to those objects. The court also held that the Trustees had the general power to enter into a sale of the property as an asset of the Trust, and that the sale could be subject to a registered encumbrance requiring the purchaser to adhere to and fulfil the charitable objects of the Trust. The court held that the proceeding concerned a matter of public interest, and that the party opposing costs had acted reasonably in the conduct of the proceeding. Therefore, the court refused to make any order for costs for all parties, except for the direction that the costs and disbursements of the Public Trustee should be paid from the assets of the Burnett Mount Cook Station Charitable Trust.

The court held that the proceeding concerned a matter of public interest, and that the party opposing costs had acted reasonably in the conduct of the proceeding. Therefore, the court refused to make any order for costs for all parties, except for the direction that the costs and disbursements of the Public Trustee should be paid from the assets of the Burnett Mount Cook Station Charitable Trust.

Orders