Clarkson v Brady - [2013] NZHC 437

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2612 [2013] NZHC 437

UNDER the Trustee Act 1956, s 64A

IN THE MATTER OF the R M Clarkson Family Trust

BETWEEN ROBERT MONCRIEFF CLARKSON AND J K HAMILTON TRUSTEE SERVICES LIMITED
Plaintiffs

ANDALEECE MAREE BRADY, MARTHA ELIZABETH CLARKSON, ANTHONY WALTER CLARKSON, SHIRLEY ALISON BROCKLEHURST, VALMA LOUISE MONCRIEFF, CAPRICE MICHELLE POWDRILL AND MEGAN JENNIFER BUCKLEY
Defendants

CIV2012-485-2614 [2013] NZHC 437

AND UNDER the Trustee Act 1956, s 64A

IN THE MATTER OF the M E Clarkson Family Trust

BETWEEN MARTHA ELIZABETH CLARKSON AND J K HAMILTON TRUSTEE SERVICES LIMITED
Plaintiffs

ANDALEECE MAREE BRADY, ROBERT MONCRIEFF CLARKSON, ALEXANDER JOHN MOORE, ROSANNA COOK, FLORENCE JEANETTE DOUGLAS, DOROTHY MAY MOORE, ANTHONY WALTER CLARKSON, SHIRLEY ALISON BROCKLEHURST

CLARKSON AND J K HAMILTON TRUSTEE SERVICES LIMITED v BRADY & ORS HC WN CIV 2012-
485-2612 [6 March 2013]

ANDVALMA LOUISE MONCRIEFF, CAPRICE MICHELLE POWDRILL AND MEGAN JENNIFER BUCKLEY Defendants

Hearing: 6 March 2013

Counsel: T D Smith for Plaintiffs
L Theron for Minor, Unborn and Unknown Beneficiaries

Judgment: 6 March 2013

ORAL JUDGMENT OF THE HON JUSTICE KÓS

[1] Before me this morning are consolidated applications brought under s 64A of the Trustee Act 1956. By these applications approval is sought to vary two trusts, the R M Clarkson Family Trust and the M E Clarkson Family Trust, which I will call the Clarkson Trusts.

[2] The Clarkson Trusts were settled in each case by the nominee settlors in

1993. The trusts are near mirror in nature, although there are some differences in the range of interested beneficiaries.

[3] The trustees of each trust are the settlor, Mr or Mrs Clarkson as the case may be, together with J K Hamilton Trustee Services Limited.

[4] The following are discretionary beneficiaries as to income and capital of the R M Clarkson Family Trust: Mrs Clarkson (or Mr Clarkson’s wife for the time being), Mr Clarkson’s children, Mr Clarkson’s grandchildren and Mr Clarkson’s mother, father, brother and sisters. Those sui juris are: Martha Elizabeth Clarkson (wife), Caprice Michelle Powdrill (daughter), Megan Jennifer Buckley (daughter), Aleece Maree Brady (granddaughter, daughter of Megan Buckley), Valma Louise Moncrieff (sister), Shirley Alison Brocklehurst (sister) and Anthony Walter Clarkson (brother).

[5] Discretionary beneficiaries as to income and capital of the M E Clarkson Family Trust are Mr Clarkson (or Mrs Clarkson’s husband for the time being), Mr Clarkson’s children, Mr Clarkson’s grandchildren, Mrs Clarkson’s husband’s children and grandchildren, Mrs Clarkson’s brother, Mrs Clarkson’s sister and Mrs Clarkson’s mother-in-law, father-in-law, brother-in-law and sisters-in law. Those sui juris at present are: Robert Moncrieff Clarkson (husband), Alexander John Moore (brother), Rosanna Cooke (sister), Florence Jeanette Douglas (sister), Dorothy May Moore (sister), Valma Louise Moncrieff (sister-in-law), Shirley Alison Brocklehurst (sister-in-law), Anthony Walter Clarkson (brother-in-law), Caprice Michelle Powdrill (husband’s daughter), Megan Jennifer Buckley (husband’s daughter), Aleece Maree Brady (husband’s granddaughter).

[6] Three minors are beneficiaries of each trust. They are Max William Powdrill-Clarkson (grandson, son of Caprice Powdrill), Maya Grace Powdrill- Clarkson (granddaughter, daughter of Caprice Powdrill)…

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 Clarkson v Brady

Details

AGLC: Clarkson v Brady [2013] NZHC 437
Case: [2013] NZHC 437
Decision Date: 6 March 2013

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, considered applications to vary the terms of the R M Clarkson Family Trust and the M E Clarkson Family Trust. The applications sought to allow the trusts to distribute income to the BOMA 2 Trust, a family trust in financial difficulty, and to introduce tax benefits. The court had to determine if the proposed variations were in the best interests of the beneficiaries, including minor, unborn, and unknown beneficiaries.

The court assessed the applications under s 64A of the Trustee Act 1956, which empowers the court to approve variations that are not detrimental to the relevant beneficiaries. The primary issues were whether the variations would expand the beneficiary class unfairly, whether the financial stability of the BOMA 2 Trust was in the best interests of all beneficiaries, and whether the proposed tax benefits were relevant. The court found that the variations would not disadvantage any beneficiary, as the trusts could already distribute income selectively. The financial stability of the BOMA 2 Trust was in the best interests of all beneficiaries due to the cross-guarantees in place, and the tax benefits were a consequence of the distribution arrangement.

The court concluded that the variations were not detrimental to the relevant interests and approved the applications. The court ordered the insertion of a clause in each trust deed to allow income distribution to the BOMA 2 Trust under specified conditions.

Orders