Davis v White - [2016] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1227 [2016] NZHC 1626

BETWEEN
ALEXANDER JAMES DAVIS AND

BRUCE CYRIL MCNIECE AS TRUSTEES OF THE REX WHITE FAMILY TRUST

Applicants

AND

MINNIE BEATRICE WHITE Respondent

Hearing: 23, 24 May 2016

Appearances:

K F Gould for Applicants
D M OʼNeil for Respondent

Judgment:

18 July 2016

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 18 July 2016 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
B C McNiece, Auckland
Browne Linkenbagh Legal Services, New South Wales, Australia

DAVIS AND ANOR v MINNIE BEATRICE WHITE [2016] NZHC 1626 [18 July 2016]

Introduction

[1] This is an application to the Court for directions pursuant to s 66 of the Trustee Act 1956 by which the applicants, as trustees of the Rex White Family Trust (the RWFT), seek an order that they may exercise their absolute and uncontrolled discretion as trustees to pay the whole of the RWFT fund to a charity, namely Freemasons New Zealand.

[2] The respondent, Mrs White, is the wife of the late Rex White. She is opposed to the making of the orders sought and claims that she is in fact the primary beneficiary, and thus entitled to the trust capital. She seeks an order that she is to receive the entire trust fund.

[3] While both the applicants and the respondent agree that the RWFT was validly created and subsists, nevertheless the deed by which the late Rex White established the trust in 1992 has for some time been lost. Apart from an unexecuted draft copy of the RWFT deed (the draft deed), there is no other written record of the terms of the executed deed of trust. As a consequence, the trustees are unable to refer to the executed deed (the RWFT deed) in order to determine the relevant terms, and specifically, the provisions of the trust as regards beneficiaries and the ultimate beneficiary.

[4] Accordingly, the real and more fundamental issue that I must decide arising from this application is whether the RWFT presently exists as a valid and subsisting trust, or whether by reason of the loss of the RWFT deed and an absence of other reliable evidence of its terms, it fails for uncertainty.

Background

[5] Rex White and Mrs White met in 1962 when he was working as a radio officer with the Union Steamship Company. Mrs White was in New Zealand on a working holiday at the time. In 1963, they moved to Australia where they lived together in a de facto marriage relationship. They were married in Australia on 12

January 1984, and thereafter continued to live together there until Rex White died on

23 November 2001.

[6] Although Rex White had a son, Christopher, from a prior marriage, he and

Mrs White did not themselves have any children together.

[7] Mrs White is now 88 years old and continues to reside in Australia.

Rex White’s will

[8] Rex White…

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 Davis v White

Details

AGLC: Davis v White [2016] NZHC 1626
Case: [2016] NZHC 1626
Decision Date: 18 July 2016

CaseChat Overview and Summary

This case involves an application by trustees to the High Court of New Zealand for directions to allow them to distribute the whole of the Rex White Family Trust (RWFT) fund to a charity. The trustees, Alexander James Davis and Bruce Cyril McNiece, are seeking to distribute the funds to Freemasons New Zealand. The respondent, Minnie Beatrice White, Rex White’s widow, opposes the distribution to the charity and claims she is the primary beneficiary of the trust capital. The central legal issue in this case is whether the RWFT is a valid and subsisting trust. The Court must determine if the trust still exists given the absence of the executed trust deed and the presence of an unexecuted draft deed.

The Court examines the certainty of objects, which is one of the essential certainties required for a valid trust. It finds that the draft deed is riddled with errors and irrelevant provisions, making it impossible to ascertain the actual terms of the executed trust deed. The Court concludes that the RWFT fails for uncertainty because there is no reliable basis to determine the objects of the trust. The Court further finds that the trustees' conduct and explanations regarding the terms of the trust are inconsistent and unreliable. The Court rules that the applicants do not have the power to distribute the trust funds to a charity, and the funds revert to Rex White’s estate, to which Minnie Beatrice White is entitled as the sole beneficiary.

Orders