Butterfield v Sundberg

[2020] NZHC 1052

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2020-476-000014

[2020] NZHC 1052

UNDER

Part 19 of the High Court Rules 2016

IN THE MATTER

of the Trustee Act 1956 and the Estate of Caitriana Baker

BETWEEN

JOSEPH GORDON BUTTERFIELD

Applicant

AND

JANINE NORA SUNDBERG

First Respondent

AND

LINDA BEVERLEY SUNDBERG

Second Respondent

Hearing:	Determined on the papers
Counsel:	S D Campbell for Applicant
Judgment:	20 May 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 20 May 2020 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BUTTERFIELD v SUNDBERG [2020] NZHC 1052 [20 May 2020]

The applications

[1]                 The applicant and the respondents are the executors and trustees of the Estate of Caitriana Baker (Mrs Baker). The applicant believes the Estate should be wound up and the balance of funds distributed to the residuary beneficiary. The respondents have not given their consent to that course.

[2]                 The applicant applies for permission to bring a proceeding seeking directions under s 66 Trustee Act 1956 by way of originating application pursuant to Part 19 High Court Rules 2016. The applicant will seek directions:

(a)he be authorised to finalise the Estate and distribute any and all remaining Estate property and funds to the Public Trust (as the trustee of the residuary beneficiary of the Estate);

(b)he be permitted to deduct his reasonable fees and expenses as a professional trustee; and

(c)for payment of costs against the respondents.

Background

[3]                 Mrs Baker died on 13 November 2014. Probate of her last will was granted to the applicant and the respondents on 19 March 2015.

[4]                 Mrs Baker’s life and affairs were closely tied to those of her brother, Donald Mount Cook Burnett (Mr Burnett).  Mrs  Baker  lived  on  Mt  Cook  Station  with Mr Burnett until she went into a nursing home on 17 February 2010.

[5]                 Mr Burnett formed a charitable trust called the Burnett Mount Cook Station Charitable Trust (the Trust) to receive his estate upon his death. This trust is also the residuary beneficiary of the estate of Mrs Baker. Mr Burnett died in July 2010.

[6]                 In 2016 and 2017 the Trust was involved in litigation in the High Court and the Court of Appeal. The Mount Cook Station had come under considerable financial pressure and was becoming insolvent. The trustees of the Trust (which included the

applicant) sought directions from the High Court as to whether or not a sale of the Mt Cook Station could proceed. The litigation resulted in High Court and Court of Appeal decisions.1 The detail of the litigation is not so important as the fact the applicant and the respondents took opposing views in the litigation on whether the Mt Cook Station should be sold.

[7]                 Put as neutrally as possible, the relationship between the applicant and the respondents has not been without conflict. The applicant says that the respondents were mostly inactive as…