FCT Trustee Limited v Meredith - [2023] NZHC 3318

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002357

[2023] NZHC 3318

UNDER
the Property (Relationship) Act 1976,

the Land Transfer Act 2017, the High Court Rules and the Trusts Act 2019

BETWEEN

FCT TRUSTEE LIMITED as trustee of the FLYING CROSS TRUST

First Applicant

GLENN MICHAEL SOROKA

Second Applicant

AND

LOUISE CLARE MEREDITH

First Respondent

GLENN MICHAEL SOROKA AND

PETER RAYMOND KERR as trustees of PAKAU 1 TRUST

Second Respondents

Hearing: 15 November 2023

Appearances:

Second Applicant in person

A P Wooding for First Respondent

E C Gellert for Liquidators of Flying Cross Trust Ltd (in liq) R J Reeves for Secure Funding Ltd

Judgment:

22 November 2023

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 22 November 2023 at 12 pm Pursuant to Rule 11.5 High Court Rules

Counsel/Solicitors: McVeagh Fleming, Auckland Lowndes Jordan, Auckland Copy to: G N Soroka

Registrar/Deputy Registrar
……………………………..

FCT TRUSTEE LTD v MEREDITH [2023] NZHC 3318 [22 November 2023]

Table of Contents

Relevant background [6]

The Settlement Agreement [10]

The Tomlin Order [12]

The Freezing Order [15]

Property Law Act notices and liquidation of FCT Ltd [20]

Applications by Mr Soroka to vary the Consent Orders [25]

The Dismissal Judgment [30]

Appointment of new trustee of FCT [39]

The current application [41]

Evidence [45]

Mr Soroka’s principal affidavit [48]

Ms Meredith’s affidavit in opposition [52]

Mr Soroka’s affidavit in reply [56]

Mr McLennan’s affidavit [60]

Submissions [65]

Submissions from Mr Soroka [65]

Submissions of counsel for Ms Meredith [68]

Submissions of counsel for the Liquidators [74]

Submissions of counsel for Secure Funding [78]

Submissions of Mr Soroka in reply [80]

Discussion [83]

Should the Court allow Mr Soroka to represent FCTTee Ltd? [86]

Does the Court have the power to make the orders sought? [95]

Other issues [118]

Result and orders [120]

Costs [122]

[1] FCT Trustee Ltd (FCTTee Ltd), as trustee of the Flying Cross Trust (FCT), and Glenn Soroka seek orders varying and replacing the terms of a Tomlin Order and a Freezing Order made by consent (the Consent Orders) in proceedings over a property at 58 Old Barn Road, Papakura (the Property). The Property had been the family home of Glenn Soroka, the settlor of the FCT, his former partner, Louise Meredith, and their son. The registered proprietor of the Property is the Flying Cross Trust Ltd (in liquidation) (FCT Ltd) by virtue of it having previously been the trustee of the FCT.

[2] The orders sought include varying and replacing the Consent Orders, including the Settlement Agreement attached to the Tomlin Order, to permit, among other things:

(a)FCTTee Ltd to be registered as the legal owner of the Property;

(b)FCTTee Ltd to borrow up to $1,250,000 (plus capitalised interest and fees) to prevent a mortgagee sale of the Property (by repayment in full of all monies owed to Secure Funding Ltd, in respect of whose loan FCT Ltd was in default) and to cover the…

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 FCT Trustee Limited v Meredith

Details

AGLC: FCT Trustee Limited v Meredith [2023] NZHC 3318
Case: [2023] NZHC 3318
Decision Date: 22 November 2023

CaseChat Overview and Summary

In FCT Trustee Limited v Meredith, FCT Trustee Limited and Glenn Michael Soroka applied to vary and replace the terms of a Tomlin Order and a Freezing Order made by consent in proceedings over a property at 58 Old Barn Road, Papakura. The application was opposed by Louise Clare Meredith, the liquidators of FCT Limited, and Secure Funding Ltd. The court considered whether it had the power to vary the Consent Orders and the Settlement Agreement scheduled to the Tomlin Order and whether it was in the interests of justice to do so. The court found that Mr Soroka could not represent FCT Trustee Limited as it was a company and should be represented by legal counsel. The court also found that it did not have the power to vary the Settlement Agreement because it was a commercial agreement and not an order of the court. The court further found that Mr Soroka's evidence did not establish that the Settlement Agreement had been made under duress. The court dismissed the application to vary the Consent Orders and the Settlement Agreement. It also ordered that FCT Trustee Limited may only be represented by qualified legal counsel in any further steps in the proceeding. The court awarded costs to Ms Meredith and the liquidators. If they wished to seek an order for increased or indemnity costs, they could file and serve memoranda of no more than five pages by 15 December 2023.

Orders