| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA358/2016 [2017] NZCA 131 |
| BETWEEN | JOCELYN ZELPHA CHAMBERS |
| AND | S R HAMILTON CORPORATE TRUSTEE LIMITED AND LAMB TRUST SERVICES LIMITEDFirst Respondents STEPHEN WHITE MAUREEN EDITH PARSONS |
| Hearing: | 23 February 2017 |
Court: | Asher, Simon France and Peters JJ |
Counsel: | C T Gudsell QC and R F Karalus for Appellant |
Judgment: | 26 April 2017 at 10.30 am |
JUDGMENT OF THE COURT
AThe application for leave to introduce further evidence is granted.
BWe allow the appeal in part.
CWe quash the High Court order directing a sale at a purchase price of $1,725,000 plus GST if any, and in substitution we make the order set out at [55].
D In all other respects we dismiss the appeal.
EAny orders required to implement the order at [55] are to be dealt with in the High Court.
FThe appellant must pay the second and third respondents one set of costs for a standard appeal on a band A basis and usual disbursements. We certify for two counsel.
GMr Hudson acted for the first respondents, and it is agreed by all parties that his fees should be paid by the estate. We so direct.
HThe issue of costs in the High Court must be determined in the High Court in light of the High Court decisions and the decision by this Court.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
Introduction
This appeal concerns whether orders made in the High Court giving directions to the trustees of a family trust were properly made.[1] The appellant Dr Jocelyn Chambers, a beneficiary, contends that the Judge went too far in giving directions that he thought were appropriate, rather than limiting himself to making or refusing to make the specific orders sought by the trustees. She seeks remittance back to the High Court, or for this Court to make the directions she supported in the High Court.
Background
The first respondents S R Hamilton Corporate Trustee Limited and Lamb Trust Services Limited (the Trustees) are trustees of a trust settled on 7 November 2003 by Mr White Senior and his wife Zelpha. It is unnecessary to trace the history since 2003 that has led to the change of name and the appointment of the current trustees. Suffice to say that the Trustees are companies linked respectively to Mr White Senior’s long term solicitor and his accountant. The final beneficiaries of the trust are the Whites’ three children, Mr Stephen White (Mr White), Ms Maureen Parsons and Dr Chambers.
Mrs Zelpha White died on 29 April 2006. In the years after her death Mr White Senior executed two memoranda of guidance intended to provide some direction to the Trustees about how they should deal with the Trust’s assets after his death and, as…
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- Case
- [2017] NZCA 131
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered the nature and extent of the jurisdiction under s 66 of the Trustee Act 1956, and whether the Judge erred in not properly considering the directions sought by the Trustees and making an allegedly different direction not sought by the Trustees. The Court found that the Trustees had surrendered their discretion to the Court by seeking directions for orders that they act in a certain specified way. The Court concluded that the Judge did not err in making the orders, as he considered the Trustees' desired option of the sale to Dr Chambers for $945,000 and rejected it for reasons that were explained and correct.
The relief to be granted was to offer the home at 4 Grace Avenue, Mt Maunganui to each of the three beneficiaries at a price of $2,025,000 including GST (if any) on standard reasonable terms. If more than one beneficiary wishes to exercise the option there will be no binding contract. If none of the beneficiaries exercises the option or more than one exercises the option, the property is to be placed on the market for sale on reasonable standard terms. The net proceeds will be divided equally between the three beneficiaries. The appeal was allowed in part, and the order of the High Court directing a sale at a purchase price of $1,725,000 plus GST was quashed, being substituted with the new order. In all other respects, the appeal against Heath J's orders was dismissed. The appellant must pay the second and third respondents one set of costs for a standard appeal on a band A basis and usual disbursements.
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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