Gavin v Powell

[2020] NZHC 3017

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000272

[2020] NZHC 3017

BETWEEN

CHARLOTTE TERESA GAVIN

Plaintiff

AND

DANIEL JOHN POWELL

First Defendant

AND

PAUL JOSEPH DORRANCE

Second Defendant

Hearing:

29 October 2020

Appearances:

J Moss for Plaintiff

T C Weston QC and W J Palmer for Defendants

Judgment:

16 November 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 16 November 2020 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GAVIN v POWELL [2020] NZHC 3017 [16 November 2020]

Introduction

[1]                 The plaintiff (Charlotte) and the first defendant (Daniel) are siblings. They have been in litigation for several years over the affairs of trusts called the Daniel Powell Family Trust (DPFT) and the Charlotte Powell Trust (CPT).

[2]                 Charlotte’s and Daniel’s father instigated the establishment of the trusts. The terms of the trusts mirror each other. While both Charlotte and Daniel, along with their respective children and grandchildren, are discretionary beneficiaries of both trusts it has been determined in other proceedings that the DPFT is intended to effectively be Daniel’s inheritance and the CPT is effectively Charlotte’s inheritance but Charlotte and Daniel can have recourse to the other’s trust if his or her trust fails.1

[3]                 The history of this and prequel litigation between the parties can be found in several judgments of this Court and the Court of Appeal.2

[4]                 Daniel and the second defendant (Mr Dorrance) are the current trustees of the DPFT. Here, Charlotte alleges numerous breaches of trust by them and, ultimately, seeks their removal as trustees and their replacement by the New Zealand Guardian Trust Ltd.

[5]                 The application presently before me is by Charlotte for an order the defendants give particular discovery of documents that relate to Daniel’s financial position at the time distributions were made to him as a beneficiary of the DPFT (the documents).

[6]                 Broadly, Charlotte argues in support of the application that the documents are relevant to the criteria the defendants used when deciding whether to make distributions to her and Daniel and will show they have favoured Daniel and his family over her and her family when making distribution decisions.

[7]                 The stimulus for this application are requests by Charlotte for distributions from the DPFT which, she says, were rejected by the defendants. The defendants deny

1      Powell v Powell [2014] NZHC 476, [2014] 3 NZTR 24-011.

2      Powell v Powell, above n 1; Powell v Powell [2014] NZHC 2096; Powell v Powell [2015] NZCA 133, [2015] NZAR 1886; Powell v Powell [2015] NZHC 1984; Gavin v Powell [2018] NZHC 2866; Gavin v Powell [2019] NZHC 1277; and Gavin v Powell [2020] NZHC 1224.

the contention that Charlotte’s requests were rejected and say money has been set aside for that purpose.

[8]                 The defendants qua trustees have deposed they do not hold the documents but, obviously, it is not disputed Daniel…