Legal Research
Cases
Gavin v Powell

Gavin v Powell

Case [2019] NZHC 1277 7 June 2019

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000272 [2019] NZHC 1277

BETWEEN
CHARLOTTE TERESA GAVIN

Plaintiff

AND

DANIEL JOHN POWELL

First Defendant

AND

PAUL JOSEPH DORRANCE

Second Defendant

Hearing: 7 March 2019

Appearances:

A F Grant and J Moss for the Plaintiff

T Weston QC and S Caradus for the First and Second Defendants

Judgment:

7 June 2019

JUDGMENT OF NATION J

Introduction

[1] These proceedings well illustrate the intense emotional and financial cost that family members can exact through the relentless pursuit of Court proceedings to air their grievances, but also the potential for lawyers to reduce that damage in the way they advise and represent their respective clients.

Background

[2] The plaintiff (Charlotte) and first defendant (Daniel) are the children of John and Lyn Powell (John and Lyn). Daniel and the second defendant (Mr Dorrance) are

GAVIN v POWELL [2019] NZHC 1277 [7 June 2019]

trustees of the Daniel Powell Family Trust (DP Trust). That trust was established in late 1998. The settlor was the solicitor who acted for John and Lyn.

[3] In 1998, the Charlotte Powell Family Trust (CP Trust) was also established. Lyn was the settlor of the CP Trust.

[4] Both trusts had similar terms. In each case, the discretionary beneficiaries included Charlotte, Daniel, their children, grandchildren and spouses. The terms of the trusts enabled each sibling’s family to benefit if the other sibling died leaving no surviving children. Each sibling and his or her family could have recourse to the other’s trust if his or her trust, for any reason, failed. Daniel and Charlotte accepted that settlement of the trusts “was effectively their inheritance from their father”.1

[5] The main asset of each trust was a shareholding in companies John had established. In the case of the DP Trust, the company was Kensal Investments Ltd (Kensal) which owned a commercial cold store in Christchurch. The CP Trust owned the shares in Investment Southland Ltd (Southland). Southland owned a cold store in Bluff as well as various property interests in the Devondale Estate in Belfast, including one where in 2014 Charlotte lived with her family.2

[6] Daniel was appointed a director of Kensal in 2002. In 2007 John resigned as a director and was replaced by Mark Rountree, a qualified lawyer and accountant who had worked closely for John between October 1991 and December 2012.3

[7] John’s relationship with Daniel and Daniel’s wife Hayley deteriorated from late 2011.

[8]On 5 August 2013, John filed proceedings in the High Court seeking:

(a) an order removing Daniel as a trustee of the DP Trust on the condition that John would also resign as a trustee;

1 See the judgment of the Court of Appeal in Powell v Powell [2015] NZCA 133, [2015] NZAR 1886 (Court of Appeal judgment); Powell v Powell [2014] NZHC 476, (2014) 3 NZTR 24-011 (first judgment) at [12]-[14]; Powell v Powell [2014] NZHC 2096 (second judgment).
2 Court of Appeal…

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 [2019] NZHC 1277
Case: [2019] NZHC 1277
Decision Date: 7 June 2019

CaseChat Overview and Summary

The plaintiff, Charlotte Teresa Gavin, commenced proceedings against the first defendant, Daniel John Powell, and the second defendant, Paul Joseph Dorrance. Charlotte and Daniel are siblings. Charlotte alleged that Daniel, as a trustee of the Daniel Powell Family Trust, and Dorrance, as a trustee appointed by Daniel, had breached their duties as trustees. Charlotte sought relief including that Dorrance’s appointment as a trustee be declared invalid. The defendants opposed the application. The Court held that the plaintiff could file an amended statement of claim, but her application to do so was adjourned. The Court also ruled that significant portions of the evidence provided by Charlotte were inadmissible because they related to issues that had been determined in earlier proceedings. The Court held that Charlotte had been a party to those earlier proceedings and could have raised all of the issues that she now wished to raise in those earlier proceedings. To permit her to relitigate issues that had been before the Court in the earlier proceedings would be an abuse of the current proceedings. The Court also ruled that Duncan Cotterill should not be permitted to act as solicitors for the defendants because the firm had an interest in the proceedings and there was a real risk that lawyers from Duncan Cotterill would be called as witnesses in the proceedings.

Orders