Gabrielsen v BPR Trustee Company Limited

[2025] NZHC 2684

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-640

[2025] NZHC 2684

UNDER

section 112 of the Trusts Act 2019

IN THE MATTER

of an originating application

BETWEEN

ANDREA BETH GABRIELSEN

Applicant

AND

BPR TRUSTEE COMPANY LIMITED

Respondent

Hearing:	On the papers
Appearances:	G S McCardle for Applicant
Judgment:	15 September 2025

JUDGMENT OF CULL J

[Leave application under pt 19 of the High Court Rules 2016]

[1]    The applicant, Andrea, is a trustee and final beneficiary of the CACG Clayton Trust (the Trust), which was settled by her father, Mr Clayton on 14 March 2003. She and her father were the original trustees. The final beneficiaries of the Trust are Andrea and her siblings, Carolyn and Gareth.

Leave to proceed by way of originating application

[2]    Andrea has applied for an order under pt 19, r 19.5 of the High Court Rules 2016 (HCR), seeking leave to commence proceedings under s 112 of the Trusts Act 2019 by way of originating application. The purpose of the proceedings is to remove the respondent, BPR Trustee Company Limited, as a trustee.

GABRIELSEN v BPR TRUSTEE COMPANY LTD [2025] NZHC 2684 [15 September 2025]

[3]    Section 112 of the Trusts Act 2019 enables the Court to remove a trustee, whenever it is necessary or desirable to do so and it is difficult or impracticable to do so without the assistance of the Court. For the reasons I set out below, the issue is whether the proposed proceedings should be commenced under pt 19 of the HCR as an originating application.

[4]    An application for the removal of trustees is not provided for as of right under r 19.2 of the HCR, only applications to allow distributions of missing beneficiaries’ shares under s 136 can be brought as of right as an originating proceeding. Rule 19.5 however allows the Court to permit any proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application, in the interests of justice.

[5]    Part 19 of the HCR governs originating applications and was designed to provide “a relatively speedy and inexpensive mechanism for a miscellany of applications which need to be made to the Court under specific statutory provisions”.1 In Fisk v X, MacKenzie J described pt 19 as initially designed as expedient for cases “where there was in reality no opposing party” but more generally, it is used for cases where it is not necessary to have full pleadings and interlocutory steps for the determination of the application.2

[6]    The Court of Appeal has provided guidance on whether applications under the Trustee Act 1956 should be brought under pt 18 or under the originating application procedure under pt 19 of the HCR. The guiding principle in Jones v O’Keeffe is whether there are factual issues in dispute or if criticism of a trustee’s conduct is relevant and disputed.3 The Court observed that applications under the Trustee Act are generally required to be brought under pt 18 and that the originating application procedure is not appropriate where factual issues are in dispute.4

1      Jessica Gorman and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) [McGechan on Procedure] at [HRPt19.01] and Manchester Securities Ltd v Body Corporate 172108 [2015] NZCA 29 at [15].

2      Fisk v X [2014] NZHC 2797 at [18].

3      Jones v O’Keefe [2019] NZCA 222 at [51].

4      Jones v O’Keefe, above n 3, at [51]–[52] and see McGechan on Procedure, above n 1, at [HR19.5.03(h)(ii)].

[7]    Here, for reasons which I set out below, there is criticism of the respondent’s conduct, which suggests that the proceedings should be commenced under pt 18. This is consistent with r 18.1(b)(xiii), that pt 18 governs proceedings in which the relief is claimed solely under the Trusts Act 2019.

Grounds for removal

[8]    Andrea’s  father, Mr Clayton, was certified  as lacking mental capacity  on   20 December 2024 following a stroke from which he suffered short-term memory loss. The settlor was not certified as lacking mental capacity until 20 December 2024, but since July of that year, Andrea provides instances of his confusion, his inability to read documents in November 2024 together with reports from his wife that his health and wellbeing were deteriorating.

[9]    Although Andrea was appointed as her father’s attorney under an enduring power of attorney, she discovered that her father’s previous law firm was no longer acting for her father and that his documents had been uplifted to a law firm. The respondent is a professional trustee company governed by the directors of the law firm.

[10]   Andrea’s father’s documents had been uplifted in October 2024, after which the respondent was appointed as her father’s attorney under an enduring power of attorney for property dated 15 October 2024. On the same date, the respondent was appointed as trustee of the Trust, without notification or consent of Andrea.

[11]   Andrea has deposed to a number of concerns about the respondent’s conduct and failures as a trustee. She, together with her siblings, have requested that the respondent retire as trustee of the Trust. After initially agreeing to do so, the respondent through its director, has subsequently refused to retire as trustee of the Trust.

Decision

[12]   Although pt 19 of the HCR is designed to provide a relatively speedy and inexpensive mechanism for applications under specific statutory provisions, it is a procedure used for cases where it is not necessary to have full pleadings or where there

is little opposition to the orders sought. In relation to applications for removal of trustees, where for health or other reasons it is appropriate that such orders are made, pt 19 proceedings have been permitted.5

[13]   In cases however where there is a likely factual dispute or if criticism is being made of a trustee’s conduct, the pt 18 procedural pathway is appropriate.

[14]   I consider that the content of Andrea’s affidavit in support of her application for the removal of the respondent as trustee identifies a number of factual issues concerning the respondent trustee’s actions to warrant a pt 18 procedure. In this way, a statement of claim will identify the basis for an order for removal, giving the respondent trustee an opportunity to respond. As this is a without notice application, the respondent’s position is plainly not before the Court.

Result

[15]   Accordingly, I decline to grant leave to commence proceedings under s 112 of the Trusts Act 2019 by way of originating application under pt 19 of the High Court Rules 2016.

Cull J

Solicitors

BMC Lawyers Limited, Paraparaumu for Applicant

5      Re Hooper [2021] NZHC 576 and Wellwood v Wellwood [2019] NZHC 801 at [8].