Cadness v Aspinall - [2025] NZHC 308

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002462

[2025] NZHC 308

UNDER Section 133 of the Trusts Act 2019 and Part 19 of the High Court Rules 2016

IN THE MATTER OF

an application for blessing orders in relation to the Aspinall Family Trust

BETWEEN

AUDREY ELIZABETH CADNESS and NEW ZEALAND TRUSTEE SERVICES

LIMITED as Trustees of the Aspinall Family Trust
Applicants

AND

KYLE JONATHAN ASPINALL

Respondent

Hearing: 18 November 2025

Appearances:

A Cameron for the Applicants

No appearance by the Respondent

Judgment:

26 February 2025

JUDGMENT OF WALKER J

This judgment was delivered by me on 26 February 2025 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CADNESS v ASPINALL [2025] NZHC 308 [26 February 2025]

[1] Trustees of the Aspinall Family Trust (AFT) seek the Court’s blessing under s 133 of the Trusts Act 2019 (the Act) to carry out a trustees’ resolution to sell the Trust property at 21A Buckleys Track, Paremoremo (the Property) and distribute the net sale proceeds between the two primary beneficiaries.1

[2]The orders they seek are:2

(a)Directions required to facilitate the sale of the Property and distribution of the net proceeds of sale (after sale costs, and repayment of monies secured by the existing mortgage to Audrey Elizabeth Cadness and Roger Herbert Cadness secured by a caveat) in equal shares to Audrey Elizabeth Cadness and Kyle Jonathan Aspinall.

(b)Indemnification of the trustees’ reasonable costs and disbursements in bringing the application from the assets of AFT.

[3] Ms Cadness, one of the continuing trustees, was in a de facto relationship with the respondent, Mr Aspinall, between 2004 and early 2018. They have four children together aged between 10 and 18 years. New Zealand Trustee Services Limited (NZTS) is an independent corporate trustee. Mr Aspinall was originally also a trustee of the AFT. Ms Cadness and NZTS contend that he is no longer a trustee for reasons which will emerge in this judgment.

[4] The application for a blessing order is not opposed. The respondent, Mr Aspinall, was served with the application but has taken no steps prior to or after the expiry of deadline for the filing of notices of opposition.3

[5] Mr Cameron, counsel for the applicant, filed fulsome written submissions prior to the hearing and assisted the Court when the matter was called. After the hearing, with leave, he filed further submissions explaining that, wishing to remove any

1      Originating application for Orders under section 133 of the Trusts Act 2019 dated 4 October 2024. Leave to proceed by way of originating application and to dispense with service on a number of named beneficiaries was granted on 9 October 2024. See Cadness v Aspinall HC Auckland CIV 2024-404-2462, 9 October 2024 (Minute of Walker J)
2      The orders sought in the originating application were amended following the hearing.
3      Cadness v Aspinall HC Auckland CIV 2024-404-2462, 6 November 2024 (Minute of Campbell J)

impediment, the trustees no…

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 Cadness v Aspinall

Details

AGLC: Cadness v Aspinall [2025] NZHC 308
Case: [2025] NZHC 308
Decision Date: 26 February 2025

CaseChat Overview and Summary

Cadness and New Zealand Trustee Services Limited, as trustees of the Aspinall Family Trust, sought a blessing order to sell a property owned by the Trust and distribute the proceeds to the primary beneficiaries, Audrey Elizabeth Cadness and Kyle Jonathan Aspinall. The application was not opposed. The trustees sought directions to facilitate the sale and distribution, as well as indemnification of their costs. The key issues were whether the trustees had formed a proper opinion, whether the opinion was reasonable, and whether it was vitiated by a conflict of interest. The Court found that the trustees had properly formed the opinion to sell the property and distribute the proceeds equally. The proposed sale and distribution was found to be a reasonable exercise of the trustees' powers, taking into account the risks of a mortgagee sale, the default position under the Property (Relationships) Act 1976, and the trustees' decision not to make an adjustment out of the sale proceeds. There was no conflict of interest found in the trustees' opinion. The Court made orders directing the sale of the property and distribution of the proceeds as sought, and indemnifying the trustees' costs from the Trust assets.

The final orders were: (a) directing the applicants to sell the Trust property on the open market; (b) directing the applicants to distribute the net proceeds of sale (after deduction of sale costs and repayment of secured monies) in equal shares to Audrey Elizabeth Cadness and Kyle Jonathan Aspinall; and (c) indemnifying the applicants from the assets of the AFT for their reasonable costs and disbursements in bringing the application.

Orders