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…

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 Gallagher-Dekker v Gallagher

Details

AGLC: Gallagher-Dekker v Gallagher [2025] NZHC 2928
Case: [2025] NZHC 2928
Decision Date: 9 October 2025

CaseChat Overview and Summary

The case of Gallagher-Dekker v Gallagher involved a dispute over the appointment of a trustee for the estate of James Joseph Gallagher, who died in September 2019. The parties in the case were Salamina Elaine Gallagher-Dekker, who was appointed as an executor and trustee under Mr Gallagher's will, and Owen Roe Gallagher and Alphonsus Cuchullain Te Kooti Lafoia Gallagher, who were also appointed as executors and trustees. The legal issues before the court were the appointment of a suitable trustee to replace Salamina Gallagher-Dekker, who had resigned, and the removal of the respondents as trustees. The court had to consider the submissions of the parties and the beneficiaries regarding the proposed trustee and make a decision on the appointment.

The court considered the nature of the trust and the assets involved, which were primarily three properties with limited liquid assets. The court noted that the role of the trustee would be challenging due to the various matters associated with the trust, including legal proceedings, tax matters, and the management of the trust properties. The court also considered the proposed trustees nominated by the parties and their respective qualifications and experience. The applicant proposed three candidates, while the respondents and some beneficiaries supported the appointment of Juliet Moses of TGT Legal. The court ruled out one of the proposed trustees due to their lack of relevant experience and considered the suitability of the remaining candidates. The court expressed concerns about the higher hourly rate of Ms Moses but ultimately decided to appoint her due to the support she had from some beneficiaries and her experience in handling complex trust matters. The court made orders for the appointment of Ms Moses as the trustee, subject to her consent to act, and for the resignation of the applicant and removal of the respondents as trustees.

The court emphasised that the applicant's nominations remained in the mix if Ms Moses was unable to accept the appointment. The court also made orders ancillary to the appointment, such as granting the trustee the power to sell or dispose of any trust property if necessary. The court reserved leave to apply for other or varied orders if necessary and to return to court if Ms Moses' appointment did not proceed for any reason. The court will address costs by a separate decision.

Orders