E v G - [2015] NZHC 824

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-837 [2015] NZHC 824

UNDER the Declaratory Judgments Act 1908

IN THE MATTER

of the T BOXALL FAMILY TRUST

BETWEEN

TRACY MICHELLE BOXALL AND BOXALL FAMILY TRUSTEE COMPANY LIMITED AS TRUSTEES OF THE T BOXALL FAMILY TRUST Plaintiffs/Applicants

AND

LIVIA GRABOWSKI First Respondent

THE SHERIFF of the High Court at
Auckland

Second Respondent

Hearing: 22 and 23 April 2015

Appearances:

P Wright and A Sinclair for the Plaintiffs
M T Hutchings and BMK Pamatautau for the Respondents

Judgment:

23 April 2015

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors/Counsel/Parties:
Mr P Wright, Barrister, Auckland
Mr AFS Vane and Ms L Foley (plaintiffs’ instructing solicitors), Le Pine & Co., Solicitors, Taupo
Mr M T Hutchings, Wentworth Chambers, Sydney
Mr BMK Pamatautau, Barrister, Auckland
Mr M Whitlock (respondents’ instructing solicitor), Solicitor, Auckland
The Sheriff at the High Court at Auckland

BOXALL AND ANOR v GRABOWSKI [2015] NZHC 824 [23 April 2015]

Introduction

[1] The plaintiffs seek an interim injunction to restrain the defendants from proceeding with an auction of a residential property in Birkenhead. I will refer to this as “the property”. The auction is scheduled for next Wednesday, 29 April 2015 at 9:00 am. The auction is being conducted by the second defendant, the Sheriff of this Court, in execution of a money judgment the first defendant, Mrs Grabowski, has against the first named plaintiff, Ms Boxall.

[2] The judgment debt arises from a judgment entered in the District Court of New South Wales in July 2011 against Ms Boxall (then known as Tracy Jaffari) and her husband Mehdi Jaffari. The judgment arose from a loan in 2007 from Mrs Grabowski’s mother, Mrs Eleanor Cato. Mrs Grabowski sues as executor of her mother’s estate.

[3] Ms Boxall, with the other plaintiff, Boxall Family Trustee Company Limited, argues that the property is not available for execution of the judgment because it is an asset of a trust – the T Boxall Family Trust. The plaintiffs say that the judgment is against Ms Boxall personally, not against the trust, and in consequence the property as a trust asset is not available to meet Ms Boxall’s personal liability.

[4] Mr Hutchings, counsel for Mrs Grabowski, acknowledged that it is a judgment for a personal debt of Ms Boxall. I note that it is also a judgment for the personal debt of her husband, Mr Jaffari.

[5] Mr Wright, for the plaintiffs, submitted as a proposition of law that trust assets are not available to meet a personal debt of a trustee. Mr Hutchings accepted that that is a correct proposition of law. Because this is an application for an interim injunction, the first matter to consider is whether there is a serious question to be tried in respect of the plaintiffs’ contentions bearing on that proposition of law.

[6] The hearing commenced yesterday afternoon under urgency. Overnight Mr Hutchings helpfully refined his argument. There were issues as to whether the trust is a sham, including whether Ms…

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 E v G

Details

AGLC: E v G [2015] NZHC 824
Case: [2015] NZHC 824
Decision Date: 23 April 2015

CaseChat Overview and Summary

The case of Boxall and Ano v Grabowski, heard by Woodhouse J, involves an application for an interim injunction to prevent the auction of a residential property in Birkenhead, scheduled for April 29, 2015. The auction is being conducted by the Sheriff of the High Court at Auckland, in execution of a money judgment against Tracy Michelle Boxall, represented by the plaintiffs, Tracy Michelle Boxall and Boxall Family Trustee Company Limited as Trustees of the T Boxall Family Trust. The judgment arose from a personal debt owed by Boxall, stemming from a loan from Eleanor Cato, now being pursued by Livia Grabowski, the executor of Cato's estate. The plaintiffs argue that the property is an asset of the trust and therefore not available to meet Boxall's personal liability. The central legal issues revolve around whether the T Boxall Family Trust was effectively constituted and whether the property was transferred to Boxall in her capacity as trustee of the trust. The court examined the documentary evidence and determined that there was a serious question to be tried on both issues. The court granted the injunction, subject to certain conditions, and reserved the question of costs. The formal order was to be amended as necessary to better define the property and the parties.

Orders