Burnett Mount Cook Station Charitable Trust - [2016] NZHC 2214

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2016-476-000026 [2016] NZHC 2214

IN THE MATTER OF
BURNETT MOUNT COOK STATION

CHARITABLE TRUST

BETWEEN

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

First Applicant

JOSEPH GORDON BUTTERFIELD DEREK JOHN TAYLOR

EUAN BOYD LINDSAY HILSON Second Applicants

THE ATTTORNEY-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: 15 and 16 September 2016

Appearances:

J Ormsby, H Shaw and S Campbell for Applicants
A Powell and A Dixon for Attorney General
P Page for Guide Hill Station Limited
G Hair and M McKay for L and J Sundberg
N Cunningham Appearing in Person and for Mount Cook

Trophy Hunting Limited

M Vance Appearing in Person

RE: BURNETT MOUNT COOK STATION CHARITABLE TRUST [2016] NZHC 2214 [16 September 2016]

D Lawry Appearing in Person

P Anderson for Royal Forest and Bird Protection Society of

New Zealand Incorporated

K Griffiths Appearing in Person

Judgment:

16 September 2016

ORAL JUDGMENT OF GENDALL J

Introduction

[1] This case concerns a charitable trust, the Burnett Mount Cook Station Charitable Trust (the Trust) settled by the late Mr Donald Burnett (Mr Burnett). Presently the Trust owns two large pieces of farmland in the Mackenzie Country near Mount Aoraki (Mount Cook) (the land). The first piece of land is described as Mount Cook Station comprising around 1610 hectares and the second is described as Cox’s Down comprising around 1004 hectares. The land had been in the Burnett family for several generations and farmed by Mr Donald Burnett throughout his life until his death in 2010 at about age 95.

[2] It has been said by Mr Anderson, counsel for an objector in this case the Royal Forest and Bird Society of New Zealand, that the land in question is a valuable and iconic High Country station whose future is at stake here.

[3] At the heart of this case are issues as to whether or not a sale of the land owned by the Trust, which certain parties entered into at the time as vendors wrongly presuming they were the continuing trustees of the Trust, is to be permitted by the Court.

[4] There are effectively three applications before the Court, the first two dated

9 May 2016 and the third dated 12 July 2016.

[5] The applicants in these applications are Mr Michael Askin, Mr Joseph Gordon Butterfield, Mr Derek John Taylor and Mr Euan Broad Lindsay Hilson (who I will refer to together the applicants).

[6] Effectively these applications seek orders from the Court:

(a) Under s 51 of the Trustee Act 1956 (the TA) to appoint Mr Askin and

Mr Hilson as new trustees of the Trust.

(b)Under s 32 of the Charitable Trusts Act 1957 (the CT Act) to…

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: [2016] NZHC 2214
Decision Date: 16 September 2016

CaseChat Overview and Summary

The case concerns the Burnett Mount Cook Station Charitable Trust, established by the late Mr Donald Burnett, which owns two large pieces of farmland in the Mackenzie Country. The applicants, Mr Michael Askin, Mr Joseph Gordon Butterfield, Mr Derek John Taylor, and Mr Euan Broad Lindsay Hilson, seek to be appointed as new trustees of the Trust, to approve a scheme to vary the objects of the Trust, and to obtain directions to approve the sale of the land owned by the Trust. The applicants' requests are opposed by various parties, including the Attorney-General, previous lessees of the Trust's farm properties, and the Royal Forest and Bird Protection Society of New Zealand.

The primary legal issue in this case is whether the applicants should be appointed as new trustees of the Trust, and if so, whether they should be permitted to proceed with the sale of the Trust's land. The Court was required to consider the applicants' standing, the appropriate criteria for appointing new trustees, and whether the applicants' involvement in the decision to sell the land would lead to a conflict of interest.

The Court held that the applicants' request to be appointed as new trustees must fail, as their involvement in the decision to sell the land and their potential conflict of interest would likely cloud their judgment as trustees. Instead, the Court appointed the Public Trustee as an independent trustee of the Trust, pursuant to s 51(1) of the Trustee Act 1956. The Court adjourned the remaining applications before it to allow the Public Trustee to provide input and for the parties to present their final arguments and submissions. The Court also directed the applicants to provide the Public Trustee with relevant documentation, and ordered the Public Trustee to file a memorandum outlining its position on the remaining applications by a specified date. Costs were reserved, and leave was reserved for any party to apply further on 24 hours' notice.

Orders