IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2023-442-16
[2024] NZHC 715
BETWEEN MARY JOSEPHINE MORTON CAIN AND PAUL JAY ATKINSON
Applicants
AND
CLAIRE BERNICE ATKINSON MARTIN, ROBIN WHALLEY AS DIRECTOR OF TOLEMAC TRUSTEES LTD AND ROBIN WHALLEY TOGETHER AS TRUSTEES OF THE TOLEMAC TRUST
Respondents
Hearing:
Further memoranda:
21 November 2023
19 November 2023 and 2 February 2024
Counsel:
G Pearson and M M Gray for Applicants G J Praat for Respondents
Judgment:
28 March 2024
JUDGMENT OF ISAC J
[Interim removal of trustees]
Introduction
[1] This proceeding concerns the administration of the Tolemac Trust, which the late Mr John Atkinson established in 2012 for the benefit of his partner and children.
[2] Unfortunately, nearly four and a half years after Mr Atkinson’s death, his family have been unable to resolve issues relating to his legacy. This has led to the current proceedings, with the applicants, two beneficiaries of the Trust, filing a second set of proceedings against the respondents as its trustees. The applicants seek a range
CAIN & ANOR v MARTIN & ORS [2024] NZHC 715 [28 March 2024]
of substantive orders, including the respondents’ removal as trustees, an account of the Trust’s assets, and judgment requiring the respondents to make good any loss caused by a breach of Trust.
[3] This judgment deals with an interlocutory application by the applicants seeking:
(a)appointment of an interim trustee “and/or suspending the current trustees”; and
(b)a freezing order under r 32.2 of the High Court Rules 2016.
[4] At the conclusion of the hearing on 21 November 2023, I indicated a preliminary view that a new interim trustee replacing Ms Claire Martin would be in the beneficiaries’ best interests. The parties requested time to explore a resolution that would avoid the need for a judgment. I therefore reserved my judgment. On 29 November 2023, counsel for the defendants requested a further 14 days to allow time for resolution. After the parties were unable to reach one, the applicants filed a memorandum on 2 February 2024 seeking judgment.
[5] I have come to the view that an interim order removing one of the trustees, Claire, is appropriate. My reasons follow.
Background
The Trust and its assets
[6] Mr Atkinson had a lifelong passion for the legend of King Arthur. As a successful businessman, he enjoyed spending his time with his partner, Mary Jo, one of the applicants, travelling around the United Kingdom in search of Camelot. His interest in the subject also inspired the name of the Trust at the centre of this case, which is an anagram of Camelot.
[7] Camelot also inspired Mr Atkinson’s choice of investments. Over many years, he collected gold and silver coins. By the time he passed away, he had amassed
significant amounts of gold and silver bullion. Mr Atkinson also nicknamed the properties he wanted to pass on to MJ and his children Camelot West, Camelot City Retreat, Camelot Island Retreat and Camelot Country…
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- AGLC
- Cain v Martin [2024] NZHC 715
- Case
- [2024] NZHC 715
- Decision Date
CaseChat Overview and Summary
The court found that it was necessary and desirable to remove Claire Martin as a trustee of the Tolemac Trust. The Trust Deed prohibits self-dealing by trustees who are also beneficiaries, and Claire's conduct indicated a lack of understanding of this requirement. Claire had uplifted a significant proportion of the Trust’s bullion, and there was an undisclosed sale of the remaining bullion, followed by a payment of $24,000 to Claire. The court considered the pattern of conduct to be inconsistent with good practice by trustees, and there was a strong likelihood of further litigation and wasted costs if Claire remained trustee. The court dismissed the application for a freezing order as Claire’s removal secured the assets from the risk of dissipation.
The application for an interim order removing Claire Martin as a trustee of the Tolemac Trust is granted. The Public Trust will be appointed in her place, subject to the parties providing memoranda on the appropriate replacement trustee or obtaining Public Trust’s consent. In all other respects, the interlocutory application is dismissed. The court reserves the question of costs, encouraging the parties to focus on a satisfactory final distribution of the Trust assets rather than further litigation.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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