IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1614
[2024] NZHC 2740
UNDER sections 122, 124, 133 and 144 of the Trusts Act 2019 and the inherent jurisdiction of the High Court of New Zealand IN THE MATTER OF
an application for directions and approvals under the Trusts Act 2019
BY
FIDELIS TRUST LIMITED
Applicant
Hearing: on the papers Counsel:
A S Butler KC, N L Walker and J B C Trezise for applicant
W Aldred KC and P Cassin, P Dale KC and J Ewart, D Grove and G Halse, S Robertson KC and A Gilbert, and R Thompson for the beneficiaries
Judgment:
20 September 2024
JUDGMENT OF JOHNSTONE J
This judgment was delivered by me on 20 September 2024 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Russell McVeagh, Auckland Paul Cassin, Auckland Ewart & Ewart, Auckland Foy & Halse, Auckland Brookfields, Auckland
FIDELIS TRUST LIMITED [2024] NZHC 2740 [20 September 2024]
[1] By originating application dated 8 July 2024, Fidelis Trust Limited seeks three types of orders, pursuant to the Trusts Act 2019, facilitating the settlement of family negotiations relating to substantial assets held in trust.
[2] On 19 July 2024, I granted leave to commence by originating application, appointed Richard Thompson, barrister, as counsel for minor and unascertained beneficiaries, and made directions as to service, the filing of papers in opposition, and otherwise for the purpose of progressing the proceeding. The application has been served as directed. Albeit Mr Thompson’s position for the minor and unascertained beneficiaries requires further explanation below, no papers were filed in opposition.
[3] Counsel for all interested parties filed joint memoranda dated 12 August 2024 and 17 September 2024, setting out the basis on which they propose that the Originating Application should now be determined on the papers, and granted, subject to amendment of the terms in which one of the order types is made.
[4] I agree it is appropriate that I should determine the application on the papers, and proceed to do so.
Background
[5]James Victor Davern (James) is 94 years old. He has three families:
(a)his ex-wife Daphne Fay Kingston (Daphne) and his children and grandchildren from that marriage (Family No 1);
(b)his son from a relationship outside his marriage to Daphne, Samuel James Middlemiss, Samuel's wife Tori Ovedal Middlemiss, and their children Johanna and Annika (Family No 2); and
(c)his current wife, Jeanette, and her children from a previous marriage (Family No 3).
[6] Throughout his life, James built up significant personal wealth. In December 1965, he settled the James Davern Family Trust (No 1 Trust). James also built significant wealth in the No 1 Trust. Fidelis is the sole trustee of the No 1 Trust.
[7] James no longer has capacity. Some years ago, James and Jeanette began looking to arrange James’ affairs before his death.
[8] James (through Jeanette and independent counsel), Jeanette, Fidelis, Family No 1 and Family…
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