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Gallagher v Gallagher-Dekker

Gallagher v Gallagher-Dekker

Case [2025] NZCA 421 25 August 2025

Trustee Removal

Alternative Dispute Resolution

Standing

Breach of Trust

Best Interests of Beneficiaries

Trusts & Equity

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA460/2024

[2025] NZCA 421

BETWEEN OWEN ROE GALLAGHER AS
EXECUTOR AND TRUSTEE OF THE
ESTATE OF JAMES GALLAGHER
First Appellant
ALPHONSUS CUCHULLAIN TE KOOTI
LAFOIA GALLAGHER AS EXECUTOR
AND TRUSTEE OF THE ESTATE OF
JAMES GALLAGHER
Second Appellant
AND SALAMINA ELAINE
GALLAGHER-DEKKER
Respondent

Hearing:	24 June 2025
Court:	Mallon, Peters and Grice JJ
Counsel:	First and Second Appellants in person
G J Angus and S J Flett for Respondent

REASONS OF THE COURT

(Given by Grice J)

Introduction

Elaine Gallagher-Dekker, the respondent, applied to the High Court to remove

her brothers, Owen and Alphonsus (known as Cuchullain) Gallagher, as trustees and

executors of their father’s estate. The Court granted the application in a judgment of

17 June 2024.[1] The order for removal is to be effective on the resignation of Elaine as

trustee and the appointment of a replacement trustee by the Court.[2]

[1] Gallagher-Dekker v Gallagher [2024] NZHC 1329 [judgment under appeal]. As in the judgment

[2] At [52(a)].

Owen and Alphonsus appeal against the High Court judgment on various

grounds including that, as family members, their removal is not in the best interests of

the estate.[3] Elaine opposes the appeal, saying that leaving the current parties to work

together as trustees of the deceased’s estate, which leaves a life interest to the

deceased’s elderly widow, Meletina Gallagher, is clearly untenable and not in the best

interests of the beneficiaries. The appellants also seek leave to adduce further

evidence on appeal.

Background

[3] The appellants filed and appeared in person in this Court on appeal. They were represented by

The High Court judgment sets out the background to the dispute.[4]

James Joseph Gallagher passed away in September 2019. He is survived by his wife

and five adult children.[5] Mr Gallagher’s last will was dated 28 October 1992. A

second codicil, dated 31 December 2015, named three of his children — Elaine, Owen,

and Cuchullain — as executors and trustees of his will. Probate was granted on

10 December 2019.[6] The will stipulates that the trustees are to hold the residue of the

estate on trust, paying the net income to Mrs Gallagher for her lifetime, with the residue to be divided equally among the five children after her death.[7] The estate

includes several properties.[8]

[4] Judgment under appeal, above n 1.

[5] At [1].

[6] At [4].

[7] At [5].

[8] At [8].

Some of Mr Gallagher’s properties had been distributed to the children in 2016

before his death. As a result, Owen and Cuchullain’s company now owns a property

adjacent to two of the estate properties.[9] Mrs Gallagher also received a property by

survivorship, where she currently lives with Owen.[10] Cuchullain occupies a flat on

the same site.[11]

The High Court judgment

[9] At [9].

[10] At [10].

[11] At [11].

In the High Court, Elaine contended that the relationship between the trustees

had deteriorated, making it difficult to manage the estate effectively.[12] Elaine…

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 v Gallagher-Dekker

Details

AGLC: Gallagher v Gallagher-Dekker [2025] NZCA 421
Case: [2025] NZCA 421
Decision Date: 25 August 2025 at 10 am

CaseChat Overview and Summary

In the case of Gallagher v Gallagher-Dekker, the Court of Appeal of New Zealand considered an appeal against the High Court's decision to remove Owen and Alphonsus Gallagher as trustees and executors of their father's estate. The respondent, Salamina Elaine Gallagher-Dekker, sought the removal of her brothers as trustees, citing issues such as conflicts of interest, mismanagement, and an inability to work together. The High Court granted the application, and the appellants now challenge this decision. The Court of Appeal began by outlining the legal principles governing the removal of trustees under the Trusts Act 2019 and the Administration Act 1969, which emphasise the importance of the beneficiaries' interests and the Court's discretion in such matters.

The appellants raised several grounds for the appeal, including allegations of misleading the Court, perjury, and bad faith. However, the Court of Appeal found these allegations to be unfounded and not supported by the evidence. The Court then turned to the main issues of whether the removal of the trustees was in the best interests of the estate and whether the High Court erred in not directing the parties to engage in an alternative dispute resolution (ADR) process. Regarding the first issue, the Court found that the Judge's decision was not erroneous, as she had correctly applied the relevant principles and reached the conclusion that the best interests of the beneficiaries would be served by removing the appellants as trustees and appointing a replacement trustee.

As for the second issue, the Court found that the appellants had not made a formal proposal to the High Court to seek directions for mediation, and the Judge was correct in determining that ADR was not a realistic solution in the circumstances. The appeal was ultimately dismissed, and the Court awarded the respondent her costs to be paid from the estate.

Orders