Gavin v Powell - [2020] NZHC 1224

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000272

[2020] NZHC 1224

BETWEEN
CHARLOTTE TERESA GAVIN

Plaintiff

AND

DANIEL JOHN POWELL

First Defendant

AND

PAUL JOSEPH DORRANCE

Second Defendant

Hearing: 20 May 2020

Appearances:

A F Grant for Plaintiff

W J Palmer and O Peers for Defendants

Judgment:

4 June 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 4 June 2020 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GAVIN v POWELL [2020] NZHC 1224 [4 June 2020]

Introduction

[1] The plaintiff (Charlotte) and the first defendant (Daniel) are brother and sister and the children of John Powell and Lynda Powell. This litigation concerns the Daniel Powell Family Trust (DP Trust). Daniel and the second defendant, Paul Dorrance (Mr Dorrance), are presently the trustees of the DP Trust. The discretionary beneficiaries include Charlotte and Charlotte’s children. Charlotte alleges, amongst other things, numerous breaches of trust by Daniel and Mr Dorrance. Ultimately, Charlotte seeks their removal as trustees and the appointment of the New Zealand Guardian Trust Company Ltd as a sole trustee in substitution for them.

[2] This judgment concerns Charlotte’s application for a priority fixture. The case has been timetabled in the expectation it will be heard in the first quarter of 2021. There is the possibility (subject to the result of this application) the trial could be brought forward and commence on 12 October 2020. Charlotte wants to secure the earlier date. Daniel and Mr Dorrance oppose her application.

Background

[3] This case has a complex procedural history in its own right but should be understood as a sequel to earlier litigation between John Powell and Daniel concerning the DP Trust. What follows provides sufficient background to understand the context within which this application has been made but is by no means complete.

[4] The DP Trust and Charlotte Powell Family Trust (CP Trust) were established by John Powell in 1998. The DP Trust and the CP Trust were in similar terms and in each case the discretionary beneficiaries included Charlotte, Daniel, their children, grandchildren and spouses. The settlement of the Trusts was effectively Daniel’s and Charlotte’s inheritances from their father. The main asset of each Trust was a shareholding in companies John Powell had established.

[5] In the case of the DP Trust, the company was Kensal Investments Ltd (Kensal). It owned a commercial cold store in Christchurch. In April 1999, Daniel was appointed a trustee of the DP Trust. The other trustee of the DP Trust at the time was John Powell. The trustees of the DP Trust own all but one of the shares in Kensal.

[6] In the case of the CP Trust, the company was Investment Southland Ltd (Southland). Southland owned a cold store in Bluff. The trustees of the CP Trust own all the shares in Southland. The trustees of the CP Trust are Charlotte and John Powell. They are also…

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 Powell

Details

AGLC: Gavin v Powell [2020] NZHC 1224
Case: [2020] NZHC 1224
Decision Date: 4 June 2020

CaseChat Overview and Summary

Charlotte Gavin applied for a priority fixture in her proceeding against Daniel Powell and Paul Dorrance in the High Court of New Zealand. She sought to secure an earlier trial date of 12 October 2020 rather than the two-week trial scheduled to commence in early 2021. Daniel and Dorrance opposed the application. The court considered the application on 15 May 2020. The primary grounds for granting a priority fixture were Charlotte's financial need, health issues, domestic difficulties, and the interests of her children. Daniel and Dorrance argued that Charlotte's financial circumstances were not as dire as she claimed, they had offered her financial support, and there was inadequate time to prepare for an early trial. The court found that Charlotte had failed to establish any exceptional circumstances justifying a priority fixture. The court dismissed the application.

Orders