Fuller v Smeets - [2013] NZHC 1284

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000961 [2013] NZHC 1284

BETWEEN
YVONNE ELIZABETH FULLER

as trustee of the Yvonne Fuller's Family
Trust

Plaintiff

AND

HERMANUS WILHELMUS SMEETS
as trustee of the Herman Smeets
Family Trust

Defendant

Hearing: 28 May 2013

Appearances:

J A Adams for Plaintiff
Mr H M Smeets, Defendant, in person

Judgment:

31 May 2013

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

This judgment was delivered by me at 3.30 pm on 31 May 2013 pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
J A Adams Barrister, Manukau City. H W Smeets, Auckland

Y E FULLER as trustee of the Yvonne Fuller's Family Trust v H W SMEETS as trustee of the Herman Smeets
Family Trust [2013] NZHC 1284 [31 May 2013]

[1] The plaintiff is a trustee of the Yvonne Fuller’s Family Trust, and the defendant one of the trustees of the Herman Smeets Family Trust. The trusts are owners as tenants in common of a property at 160 Ramarama Road, Auckland. At the time it was bought, Yvonne Fuller and Hermanus Smeets were living in a de facto relationship, and the property was used as their family home until they separated in September 2012. Yvonne Fuller’s trust seeks an order under s 339 of the Property Law Act 2007 that the property be sold under the supervision of the Registrar of the Court, by auction, and ancillary orders to effect that process.

[2] Yvonne Fuller’s trust seeks summary judgment, that is judgment without trial, for these orders.

[3] Summary judgment may be ordered under r 12.2 of the High Court Rules when a plaintiff satisfies the Court that a defendant does not have a defence to a claim. The onus of establishing that rests entirely on the applicant, but if an application is opposed it is for the respondent to demonstrate a tenable defence.1

Procedural issues

[4] This proceeding should not have been brought by one trustee, and against one trustee, only. Both trusts have two trustees and they must be parties. By consent I direct that Annette Reilly is added as a plaintiff, and Yvonne Fuller as a defendant. Given the issues between Yvonne Fuller and Hermanus Smeets, both will no doubt reflect on whether Yvonne Fuller should remain as a trustee of the Herman Smeets Family Trust. If she ceases to be a trustee a further order removing her as a defendant will be made.

Facts

[5] Ms Fuller and Mr Smeets formed a de facto relationship early in 2001. In
November 2002 and February 2004 Mr Smeets and Ms Fuller respectively set up family trusts. Each was a discretionary beneficiary and final beneficiary in the trust

1 Auckett v Falvey HC Wellington CP296/86, 20 August 1986; MacLean v Stewart (1997)
11 PRNZ 66 (CA).

of the other, and until November 2012 Mr Smeets was a trustee of Yvonne Fuller’s

trust. As noted above, she remains a trustee of his trust.

[6] Initially they lived at a farm 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.

Continue reading Fuller v Smeets

Details

AGLC: Fuller v Smeets [2013] NZHC 1284
Case: [2013] NZHC 1284
Decision Date: 31 May 2013

CaseChat Overview and Summary

The case of Yvonne Fuller’s Family Trust v Herman Smeets Family Trust revolves around a dispute between the trustees of two family trusts over the sale and division of a property at 160 Ramarama Road, Auckland. Yvonne Fuller, trustee of the Yvonne Fuller’s Family Trust, seeks an order for the property to be sold and the proceeds divided equally between the trusts, as well as ancillary orders to effect the sale. The legal issues before the court were whether the property should be sold and, if so, how the proceeds should be divided. The court considered various factors under the Property Law Act 2007, including the extent of the shares, the nature and location of the property, and the hardship that would be caused by the refusal or making of the order. The court concluded that the property should be sold, and the net proceeds divided equally between the trusts. The court found that the relationship between the parties had ended, and there was no significant hardship to either party in selling the property. The court also noted that the property had not appreciated in value as anticipated and that the distribution of another property between the trusts did not entitle either party to a greater share of the proceeds from the sale of the Ramarama Road property. The court granted the plaintiff's application for summary judgment and ordered the sale of the property and the division of the net proceeds equally between the trusts. The plaintiff was awarded costs on a 2B basis plus disbursements fixed by the Registrar.

Orders