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Gavin v Gavin

Gavin v Gavin

Case [2021] NZHC 550 17 March 2021

Trust Variation

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-52

[2021] NZHC 550

UNDER Trusts Act 2019

IN THE MATTER OF

an application to vary the Racecourse Trust, Headstart Trust, Charlotte Powell Family Trust, Daniel Powell Family Trust and McKenzie Family Trust

BETWEEN

CHARLOTTE TERESA GAVIN AND NIGEL JOSEPH GAVIN

Applicants

AND

CHARLOTTE TERESA GAVIN

First Respondent

AND

NIGEL JOSEPH GAVIN

Second Respondent

AND

JESSICA AMY GAVIN

Third Respondent

AND

DANIEL POWELL, JOHN WILLIAM POWELL, LYNDA MAREE POWELL, LEONARD THOMAS GAVIN, JOY MURTLE GAVIN, TIMOTHY JOHN GAVIN AND CONSUELLA DENELZA GAVIN

Fourth Respondents

CIV-2021-409-53

BETWEEN

CHARLOTTE TERESA GAVIN AND JOHN WILLIAM POWELL

Applicants

AND

CHARLOTTE TERESA GAVIN

First Respondent

AND

NIGEL JOSEPH GAVIN

Second Respondent

GAVIN v GAVIN [2021] NZHC 550 [17 March 2021]

AND
JESSICA AMY GAVIN

Third Respondent

AND

DANIEL POWELL

Fourth Respondent

CIV-2021-409-54

BETWEEN

CHARLOTTE TERESA GAVIN AND JOHN WILLIAM POWELL

Applicants

AND

CHARLOTTE TERESA GAVIN

First Respondent

AND

JESSICA AMY GAVIN

Second Respondent

AND

DANIEL POWELL

Third Respondent

CIV-2021-409-55

BETWEEN

DANIEL POWELL AND PAUL JOSEPH DORRANCE

Applicants

AND

DANIEL POWELL

First Respondent

AND

HAYLEY KIM POWELL

Second Respondent

AND

CHARLOTTE TERESA GAVIN

Third Respondent

AND

JESSICA AMY GAVIN

Fourth Respondent

CIV-2021-406-61

BETWEEN

LYNDA MAREE POWELL AND PUBLIC TRUST

Applicants

AND

CHARLOTTE TERESA GAVIN AND

NIGEL JOSEPH GAVIN
First Respondents

AND

CHARLOTTE TERESA GAVIN AND JOHN WILLIAM POWELL

Second Respondents

Hearing: 11 March 2021

Appearances:

J Moss for Racecourse Trust, Charlotte Powell Family Trust and Headstart Trust

S Caradus for Daniel Powell FamilyTrust S J Jamieson for McKenzie Family Trust

M J Wallace on behalf of Minor and Unborn Beneficiaries Descended from Charlotte Powell

G D Jones on behalf of Minor and Unborn Beneficiaries Descended from Daniel Powell

Judgment:

17 March 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 17 March 2021 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

[1] The Court has before it five applications to approve proposed variations to a number of separate trusts on behalf of minor or unborn beneficiaries of the respective trusts.1 The applications are made as part of a settlement that is contingent upon the orders sought in the application being obtained from this Court.

Background

The Trusts

[2] Charlotte Gavin (née Powell) (Charlotte) and Daniel Powell (Daniel) are the children of John and Lyn Powell. In 1998, John established a trust for each of his two adult children. The trusts mirrored each other. The Daniel Powell Trust (DP Trust) was intended to benefit Daniel and his immediate family, and the Charlotte Powell Trust (CP Trust) Charlotte and her immediate family. John and Charlotte were co-trustees of the CP Trust and John and Daniel co-trustees of the DP Trust. Both trusts also provided for the other sibling and their family to be discretionary beneficiaries as to income in the event the other sibling died and had no surviving children, or should their trust fail and be unable to…

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 Gavin v Gavin

Details

AGLC: Gavin v Gavin [2021] NZHC 550
Case: [2021] NZHC 550
Decision Date: 17 March 2021

CaseChat Overview and Summary

The applicants, Charlotte Teresa Gavin and Nigel Joseph Gavin, applied to the High Court of New Zealand for approval of variations to the Racecourse Trust, Charlotte Powell Family Trust, Daniel Powell Family Trust, Headstart Trust and McKenzie Family Trust. The application was made pursuant to section 124 of the Trusts Act 2019, as the trustees and adult beneficiaries consented to the variations, but approval was required on behalf of minor and unborn beneficiaries who were unable to consent. The applicants sought the approval as part of a settlement that was contingent upon the Court approving the variations. The Court was required to decide whether the variations to the trusts were in the best interests of the beneficiaries unable to consent. The Court found that the variations were in the best interests of the minor and unborn beneficiaries, and approved the variations on their behalf. The Court also approved the variations on behalf of a class of contingent beneficiaries, being charitable trusts or charitable purposes or institutions, that may acquire an interest on the happening of a future event.

Orders