CDT 12 Limited v Millar - [2019] NZHC 606

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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV 2018-441-91

[2019] NZHC 606

UNDER the Trustees Act 1956 and the Court’s inherent jurisdiction

IN THE MATTER OF

the Miller Ashurst Grandchildren’s Trust

BETWEEN

CDT 12 LIMITED as Trustee of the Miller Ashurst Grandchildren’s Trust

Plaintiff

AND

MEGAN JANE MILLAR as Trustee of the Miller Ashurst Grandchildren’s Trust

First Defendant

NAPIER INDEPENDENT TRUSTEES
LIMITED as Trustee of the Miller Ashurst Grandchildren’s Trust
Second Defendant

LORRAINE ASHURST as Trustee of the Miller Ashurst Grandchildren’s Trust

Third Defendant

On the papers

Judgment:

27 March 2019

JUDGMENT OF MALLON J

Introduction

[1] The plaintiff (CDT) applies for an order removing itself and the second defendant (Megan Millar) as trustees of the Miller Ashurst Grandchildren’s Trust (the Trust) and appointing the New Zealand Guardian Trust Company Limited (NZGT) as the sole trustee. It also seeks an order vesting the trust assets in NZGT.

CDT 12 LIMITED v MILLAR [2019] NZHC 606 [27 March 2019]

[2] The orders are sought because it is alleged that the present trustees are not validly appointed, Megan Millar has inappropriately taken Trust funds, and Megan Millar and a former validly appointed trustee (Napier Independent Trustees Limited (NITL)) have not cooperated to rectify the matter.

[3] The orders are sought under sections 51 and 52 of the Trustee Act 1956 and the Court’s inherent jurisdiction.

The facts

[4] The Trust was established by deed on 10 May 2007 by Mr Ian Miller and Ms Ashurst as settlors (the Deed of Trust). The couple had been married or in a de facto relationship for some time before that date. Mr Miller, Ms Ashurst and NITL were the original trustees of the Trust. Mr Miller, Ms Ashurst, and the grandchildren of Mr Miller and Ms Ashurst were beneficiaries under the Trust. Mr Miller’s children were not beneficiaries.1

[5] The Deed of Trust provided that: the statutory power of appointment of trustees was vested in the trustees; the trustees could appoint additional trustees at any time; and the trustees could appoint an advisory trustee at any time. It further provided that the powers of the trustees could only be exercised by unanimous decision of the trustees. The Deed of Trust contemplated the possibility that the Trust might be left with one trustee at some point, because it provided that in such a situation the trustee could not apply the Trust fund to his or her benefit.

[6] In about 2010, Mr Miller and Ms Ashurst separated. As part of the separation, Ms Ashurst retired as trustee of the Trust on 29 June 2010, renounced any powers of appointment under the Trust Deed, and disclaimed any present or future beneficial entitlement under the Trust. Shortly thereafter Mr Miller died, leaving NITL as the sole remaining trustee.

[7] Under the will, Mr Miller’s four surviving children, Aaron Millar, Kirsty Maree Hinton, Terene Dickson and Megan Millar,…

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 CDT 12 Limited v Millar

Details

AGLC: CDT 12 Limited v Millar [2019] NZHC 606
Case: [2019] NZHC 606
Decision Date: 27 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, CDT 12 Limited, as trustee of the Miller Ashurst Grandchildren’s Trust, applied for an order removing itself and Megan Jane Millar as trustees of the Trust and appointing New Zealand Guardian Trust Company Limited as the sole trustee, along with an order vesting the Trust’s assets in the New Zealand Guardian Trust Company Limited. The application was made under sections 51 and 52 of the Trustee Act 1956 and the Court’s inherent jurisdiction. The application was based on allegations that the present trustees were not validly appointed, Megan Millar had misappropriated Trust funds, and Megan Millar and a former validly appointed trustee had not cooperated to rectify the matter.

The legal issues the Court had to decide were whether the Court should follow the interpretation of the term “individuals” in a similar provision in Jasmine Trustees Ltd v Wells & Hind and, if so, whether the appointments of Megan Millar and Helen Millar were invalid and, in turn, whether CDT 12 Limited’s appointment was invalid. The Court was also required to decide whether the vesting of the Trust’s assets in the New Zealand Guardian Trust Company Limited was appropriate.

The Court was not persuaded that the term “individuals” in sections 43 and 45 of the Trustee Act excluded body corporates from that term. The Court was not persuaded that all Trust appointments from the time NITL appointed Helen and Megan Millar as new trustees were invalid. The Court accepted that it was expedient to appoint a new trustee or new trustees, and it was difficult or impracticable to do so without the assistance of the Court. The Court also accepted that the New Zealand Guardian Trust Company Limited should be appointed in the place of CDT, Megan Millar and the original trustees if they had not been validly replaced by CDT and Megan Millar.

The Court was satisfied it was appropriate to make the vesting order. The Court appointed New Zealand Guardian Trust Company Limited as the sole trustee of the Trust and made a vesting order in New Zealand Guardian Trust Company Limited in terms of the application. Costs on a 2B basis and disbursements were ordered and payable from the assets of the Trust.

Orders