Introduction [1] Narrative [5] The MRWT [25] The Family Court decision [35] The High Court decision [41] The legislation [47] Beneficial “ownership” of “property” under the PRA [54] Illusory trusts and general powers of appointment [63]
Illusory trusts [64] General powers of appointment [73] Extremely discretionary trusts and Parliamentary intention [78]
Marcus’s powers in connection with the MRWT [82]
Is the MRWT illusory? [82] A general power of appointment? [89]
Remedy [94] The cross-appeal [102] Disposition [104]
Introduction
This is a second appeal and cross-appeal, by leave, from a decision of the Family Court which ascertained relationship and separate property of the parties’ relationship.
Before Judge Grace the appellant, Raewyn Cooper, succeeded in establishing that powers held by the respondent, Marcus Pinney, in connection with the MRW Pinney Trust (the MRWT) were relationship property.[1] The Trust had been established during the relationship to hold assets distributed to Marcus by the trustees of his parents’ trust. The Judge’s decision to classify Marcus’s powers as relationship property brought into account the farm on which the parties lived and worked throughout their relationship.
[1]Cooper v Pinney [2018] NZFC 9120 [Family Court judgment].
In the High Court Clark J allowed Marcus’s appeal, reasoning that all the powers conferred on him under the trust deed were subject to fiduciary obligations and accordingly were not “property” for purposes of the Property (Relationships) Act 1976.[2]
At separation Marcus had a credit balance in his current account with the MRWT. Both Courts below found this to be relationship property. He cross-appeals, saying that it was property he acquired as a beneficiary under a trust established by a third person and hence his separate property for purposes of s 10 of the Act.
Narrative
Marcus’s father, Bernard Pinney, established the Pinney Trust in 1977. The trust deed is not in evidence but we were given to understand that the beneficiaries were his children and remoter issue. Marcus was an infant at the time. By April 2004 the trustees were Jennifer Pinney (his mother), Lindsay McIntyre and John Acland. Mr McIntyre was an accountant and trusted advisor and Mr Acland appears to have been a farm advisor.
In 2000 Marcus and his then partner, Mia Stafford-Bush, agreed to buy a deer farm of 130 ha at Te Taho, Whataroa, Westland. They intended to farm the property…
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.
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AGLC
Cooper v Pinney [2023] NZCA 62
Case
[2023] NZCA 62
Decision Date
CaseChat Overview and Summary
This is a second appeal and cross-appeal from a decision of the Family Court which ascertained relationship and separate property of the parties’ relationship. The appellant, Raewyn Cooper, succeeded in establishing that powers held by the respondent, Marcus Pinney, in connection with the MRW Pinney Trust (the MRWT) were relationship property. The Trust had been established during the relationship to hold assets distributed to Marcus by the trustees of his parents’ trust. The Judge’s decision to classify Marcus’s powers as relationship property brought into account the farm on which the parties lived and worked throughout their relationship. In the High Court Clark J allowed Marcus’s appeal, reasoning that all the powers conferred on him under the trust deed were subject to fiduciary obligations and accordingly were not “property” for purposes of the Property (Relationships) Act 1976. At separation Marcus had a credit balance in his current account with the MRWT. Both Courts below found this to be relationship property. He cross-appeals, saying that it was property he acquired as a beneficiary under a trust established by a third person and hence his separate property for purposes of s 10 of the Act. Miller J found that the MRWT was a valid trust and that Marcus’s powers in connection with the trust amounted to a general power of appointment, which was property for the purposes of the PRA. The majority held that the MRWT was a valid trust. They rejected Miller J’s conclusion that Marcus’s powers under the MRWT deed amounted to a general power of appointment. They found that the dispositive powers conferred under the MRWT deed were not held by Marcus alone. Further, any exercise of the dispositive powers by the trustees was constrained by the fiduciary obligations they owed to the beneficiaries. They dismissed the appeal and cross-appeal.