Gallagher-Dekker v Gallagher

[2025] NZHC 2928

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002186

[2025] NZHC 2928

UNDER

Part 19 of the High Court Rules 2016, ss 112 and 114 of the Trusts Act 2019 and the

inherent jurisdiction of the High Court to supervise trusts

IN THE MATTER

of the estate of James Joseph Gallagher

BETWEEN

SALAMINA ELAINE GALLAGHER- DEKKER

Applicant

AND

OWEN ROE GALLAGHER and ALPHONSUS CUCHULLAIN TE KOOTI LAFOIA GALLAGHER

Respondents

Hearing:	2 October 2025
Appearances:	S J Flett and C Stone for Applicant Respondents in person
Judgment:	9 October 2025

JUDGMENT OF ANDERSON J

[Appointment of trustee]

This judgment was delivered by me on 9 October 2025 at 3.00 pm pursuant to r 11.5 of the High Court Rules 2016.

………………………………

Registrar/Deputy Registrar

Solicitors:
Morris Legal, Auckland

Copy to:
Annie-Marie Gallagher

GALLAGHER-DEKKER v GALLAGHER [2025] NZHC 2928 [9 October 2025]

[1]                James Gallagher (Mr Gallagher) died in September 2019. Mr Gallagher was survived by his wife, Meletina Gallagher (Mrs Gallagher), and adult children, who are the beneficiaries of his estate.

[2]                Under his will and associated codicil, Mr Gallagher appointed his daughter, Ms Salamina Gallagher-Dekker (who is the applicant), and the respondents (his sons Mr Owen Gallagher and Mr Cuchullain Gallagher) as executors and trustees.1 By my judgment dated 11 July 2024, I made an order sought by the applicant removing the respondents as trustees of the trust established under his will (the Gallagher Trust), to take effect upon the applicant’s resignation as trustee and the Court’s appointment of replacement trustee(s).2

[3]                I adjourned steps to appoint a replacement trustee pending the outcome of an appeal against my decision. The appeal was dismissed on 25 August 2025.3 Since that time, I have sought and received submissions from the parties as to the proposed trustee, which included efforts to ascertain the views of  the  other  beneficiaries (Mrs Gallagher as well as the daughters she and Mr Gallagher share, Annie-Marie Gallagher and Bernadette Gallagher).4 This decision addresses those submissions and determines the trustee to be appointed.

[4]                In addition to the written and oral submissions of the applicant and the respondents, I granted leave for Annie-Marie Gallagher, one of the beneficiaries, to address me on the issue of the proposed trustee.

[5]                I address first the nature of the trust before considering the issue of proposed trustee.

1      Following my judgment, material has been filed by the respondents and Annie-Marie Gallagher contesting that the applicant is a “child” of Mr Gallagher for the purposes of the will and codicils, and hence whether she is a beneficiary of the estate. There can be no question that the applicant was appointed a trustee by Mr Gallagher. Whether she is a beneficiary is not an issue before me and I make no comment on the merits of that view. For simplicity, I continue to use the same descriptors as my earlier judgment.

2      Gallagher-Dekker v Gallagher [2024] NZHC 1329.

3      Gallagher v Gallagher-Dekker [2025] NZCA 421.

4      Mr Gallagher’s other children.

The trust assets and operation

[6]                By Mr Gallagher’s will, the trustees of the estate are to hold the residue of the estate on trust to pay the net income to Mrs Gallagher for her lifetime. Following Mrs Gallagher’s death, the residue is to be divided equally between Mr Gallagher’s children.

[7]                To give an idea of the present value and make-up of the estate, I adopt the summary provided by the applicant, although I appreciate this is simply her estimate. She states that the net value is in the vicinity of $8.295 million. It currently comprises three properties, being two rental properties and one bare land holding. She advises that the estate has limited liquid assets, with around [REDACTED] in a bank account and net rental income being paid to Mrs Gallagher in accordance with the will.

[8]                Hence, the estate is sizable but not substantial relative to some of the estates this Court deals with. It would appear to have little in the way of liquid assets.

[9]                There are several moving parts associated with the trust at present. Without intending to be exhaustive, these include the following:

(a)Mrs Gallagher has brought proceedings in the Family Court under the Property (Relationships) Act 1976 and the Family Proceedings Act 1980 in relation to Mr Gallagher’s estate;

(b)there are tax matters that need to be dealt with by the trust as well as the payment of debts to trust accountants, lawyers and the IRD;

(c)the estate rental properties need to be managed and there will need to be decisions associated with the trust properties; and

(d)there is a dispute within the Gallagher family which calls for a negotiated settlement. The trustee will no doubt be involved in seeking to progress a negotiated outcome.

[10]            There may be a range of other steps the trustee will need or may choose to take. I record that the respondents outlined an extensive range of steps that they considered would be appropriate and/or required.

Proposed trustee(s)

[11]            It is clear from the above that the role of trustee will not be a passive one and is likely to be challenging. It is common ground that the trustee should be an experienced professional adviser.

[12]            The applicant has nominated three proposed replacement trustees that I set out in order of her preference (each would operate through a special purpose trust company incorporated for the purpose):

(a)Israel Vaealiki of Jackson Russell Lawyers;

(b)Sam Bassett of Moore Markhams; and

(c)David Snedden and MacGregor Chapman of Snedden Law Ltd.

[13]            The applicant advises that Bernadette Gallagher has confirmed through her counsel that she would be comfortable with any of the above options but expresses a preference for the first.

[14]            The respondents propose that Juliet Moses of TGT Legal be appointed as the replacement trustee (or a special purpose trustee incorporated for that purpose). In addition  to  support  from  the  respondents,  this  appointment  is  supported  by  Mrs Gallagher, the life interest holder, as well as Ms Annie-Marie Gallagher.

[15]            I received trustee fee proposals and details of the relevant experience of the potential trustees.

Consideration of the trustee(s)

[16]            All of the proposed trustees are solicitors with considerable trust experience except for Mr Bassett, who is an accountant. In my view, it is sensible that a solicitor

be appointed rather than an accounting adviser (Mr Bassett). The diversity of matters at play, including the legal proceedings on foot, suggest that a solicitor is likely to have a more appropriate skill set. Accordingly, I rule out Mr Bassett as a candidate.

[17]            The applicant favours the appointment of Mr Vaealiki. He is a partner of Jackson Russell Lawyers, a full-service law firm. This is submitted by the applicant to be an advantage given the Family Court proceedings and the other range of matters the trust will need to deal with. The applicant points to the fact that Mr Vaealiki has already done due diligence and proposed conditions on which he would be appointed. His understanding of the matter is more advanced. However, I do not consider this to be determinative.

[18]            The other proposed trustee for the applicant is a trustee company to be run by Mr Snedden and Mr Chapman of Snedden Law. I observe that Mr Snedden has a practice comprising property law, wills and estates. This experience would be useful, given the property holdings of the trust.

[19]            Ms Moses is a specialist trust lawyer who has substantial experience in complex trust matters and holds (or has held) a number of trustee positions.

[20]            Mr Vaealiki’s charge out rate is $640 per hour. Mr Snedden and Mr Chapman have a charge out rate of $450 per hour. Ms Moses’ charge out rate is significantly higher at $800. All are exclusive of GST and disbursements.

[21]            In my view, all three remaining candidates would be suitable. Annie-Marie Gallagher contended that links between all of the applicant’s proposed trustees and her former employer mean that they are unacceptable. I do not agree that this impacts the decision given the nature of the links she described. I also reject the substance of any concerns that the respondents and Annie-Marie Gallagher raised to the appointment of either Mr Vaealiki or Mr Snedden and Mr Chapman. I need not expand on these issues because their merits have not been central to my decision.

[22]            My principal concern at the appointment of Ms Moses is the considerably higher hourly rate. I have confidence in Ms Moses and the applicant has no issue with

her suitability. The applicant’s legitimate concern, which I share, is the imposition on the estate of the extra costs that her appointment might involve. A concern at potential cost (in circumstances where I had no information on charge out rates) was behind my original decision to defer appointing the previous candidate trustee proposed by the applicant at the hearing of the application to remove trustees on 21 May 2024.

[23]            On the other hand, it is important that the appointed trustee has the confidence of the beneficiaries. This is a closely held family trust which is in conflict. Open lines of communication with the beneficiaries will be important. As I discussed above, the respondents and Annie-Marie Gallagher have expressed a lack of trust and confidence in the trustees proposed by the applicant. Irrespective of whether these concerns are well-founded, the applicant’s proposed trustees will start with a distinct disadvantage in administering the trust without the buy-in of all parties. Not only is this difficult for the replacement trustee, but I apprehend that such an appointment may well lead to additional cost and expense if this lack of confidence results in further disputes. For this reason, appointing Mr Snedden and Mr Chapman or Mr Vaealiki based on a lower hourly rate may be a false economy.

[24]            It is also significant that Mrs Gallagher proposed and supports Ms Moses’ appointment. That is a positive for the task of navigating the Family Court proceedings brought by Mrs Gallagher. Of course, Mrs Gallagher also holds the life interest in the estate.

[25]            Accordingly, despite her higher hourly rate, I have decided that Ms Moses (or her nominated trustee company) should be appointed. I note that it appears from the material provided that an annual fee may also be a possibility, which might be discussed with Ms Moses.

[26]            The respondents have annexed correspondence from Ms Moses from which I infer that she is open to appointment. However, further steps need to be taken before Ms Moses is in a position to consent to act. The orders I make will reflect this.

[27]            I emphasise that the applicants’ nominations  remain  in  the  mix,  should  Ms Moses ultimately be unable to accept appointment. My decision should not be

taken to mean that the Court will reject those nominations out of hand, should the matter return to me. The lack of support from the respondents and Annie-Marie Gallagher is not determinative. It is an issue that could be appropriately addressed through engagement with the appointed trustee.

Other orders

[28]            In addition to orders for the appointment, I make orders below ancillary to my earlier orders for the resignation of the applicant and removal of the respondents to coincide with the new appointment.

[29]            One of the issues the applicant raised was the likely necessity for the trust to sell property given the present lack of liquid funds. Her counsel proposed I make an order that the replacement trustee has the express power to sell or otherwise dispose of, or deal with, any trust property and to confirm that any sale may be by public auction or private contract for a price and on terms as the trustee sees fit. This is to make clear to all beneficiaries that the trustee has the necessary powers to sell property if they think fit.

[30]            I do not consider it appropriate for the Court to grant specific powers associated with the order to replace the trustee. There is no need to add a gloss to the powers that the trustee already has. For example, the will empowers the trustees to “sell call in and convert into money so much or such part thereof [of Mr Gallagher’s real and personal property] as shall not consist of money”. By cl 7, the trustees have the power to postpone “the sale calling in and conversion” of the estate. The estate is presently held as real estate rather than in liquid funds in exercise of this latter power of postponement.

Orders

[31]I make the following orders:

(a)subject to her consent to act, Juliet Moses (or a trustee company for that purpose nominated by her) is to be appointed trustee  of  the  Gallagher Trust;

(b)the appointment will take effect when Ms Moses (personally or on behalf of the trustee company) files and serves notice confirming that she accepts the appointment (the appointment);

(c)prior to the appointment the applicant is to sign, file and serve a resignation letter that is expressed to take effect on the appointment;

(d)the respondents’ removal as trustees will take effect on the appointment; and

(e)I reserve leave to apply for other or varied orders to give effect to this decision, and leave to return to Court should Ms Moses’ appointment not proceed for any reason.

[32]I will address costs by a separate decision.

Anderson J