Gavin v Powell - [2018] NZHC 2866

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000272

[2018] NZHC 2866

BETWEEN
CHARLOTTE TERESA GAVIN

Plaintiff

AND

DANIEL JOHN POWELL

First Defendant

AND

PAUL JOSEPH DORRANCE

Second Defendant

Hearing: 26 October 2018

Appearances:

A F Grant for the Plaintiff

S Caradus and G K Raymond for the Defendants

Judgment:

6 November 2018

JUDGMENT OF NATION J

[1] Daniel Powell is a trustee of the Daniel Powell Family Trust (DPT). Daniel and his family are discretionary beneficiaries of the DPT. Daniel’s sister, Charlotte Gavin and her children and grandchildren are also discretionary beneficiaries of the DPT. A judgment of the High Court required an independent professional trustee to be a co-trustee with Daniel. Janine Ballinger, a solicitor, was appointed.

[2] At Daniel’s request, Ms Ballinger retired as a trustee of the DPT. In doing so, she and Daniel exercised powers as trustees under s 43 Trustee Act 1956 to appoint another trustee in her place. They appointed Paul Dorrance, a solicitor and partner in the firm of Duncan Cotterill, who had acted for Daniel in earlier proceedings concerning the DPT.

GAVIN v POWELL [2018] NZHC 2866 [6 November 2018]

[3] Charlotte has issued proceedings asking the Court to remove Daniel and Mr Dorrance as trustees and for a sole trustee, potentially the Public Trustee, to be appointed in their place.

[4] Charlotte seeks discovery of documents relating to the removal of Ms Ballinger as a trustee, the appointment of Mr Dorrance, and the “client file” that Ms Ballinger had while acting as a trustee. The application for such tailored discovery is opposed.

Background

[5] The proceedings are a sequel to judgments in earlier proceedings in which a number of the current parties were involved.

[6] Daniel and Charlotte’s father, John Powell, instigated the establishment of the DPT and, around the same time, of the Charlotte Powell Family Trust (CPT). The beneficiaries of that latter trust include Charlotte and her children and grandchildren, and Daniel and his children and grandchildren.

[7] Charlotte says the DPT has a significant investment in a substantial cool store building in Christchurch owned by a company Kensal Investments Ltd (Kensal). Daniel is a director of Kensal. The allegation is that the directors of Kensal have made decisions in relation to the business to avoid capital and/or income from the company being available to the DPT where it could be applied for the benefit of the beneficiaries, including Charlotte.

[8] John Powell and Charlotte are trustees of the CPT. The CPT’s major asset is shares in Investment Southland Ltd, which owns a cool store in Southland. John Powell said in an affidavit that, because of problems with the cool store, the CPT is not in a position to pay school fees and other expenses for Charlotte and her family. Charlotte, supported by her parents, says that, in these circumstances, the trustees of the DPT ought to be assisting her with household expenses, payment of school fees for her…

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 [2018] NZHC 2866
Case: [2018] NZHC 2866
Decision Date: 6 November 2018

CaseChat Overview and Summary

In Gavin v Powell, the plaintiff, Charlotte Teresa Gavin, sought orders for discovery of documents relating to the appointment of Paul Dorrance as a trustee of the Daniel Powell Family Trust (DPT) in place of Janine Ballinger. The defendants, Daniel John Powell and Paul Joseph Dorrance, opposed the application. The Court was required to determine whether the plaintiff's request for discovery was appropriate. The Court held that the plaintiff was entitled to discovery of certain documents, including those held by Cavell Leitch, relating to communications between Daniel and Ballinger, communications between Charlotte and Ballinger, and the decision to seek Ballinger's removal as trustee. The Court did not require discovery of documents that would allow a fishing expedition or disclose reasons for trustee decisions that were not at issue in the proceedings. The Court also ordered discovery of documents held by Duncan Cotterill or Daniel relating to communications with Dorrance as to Dorrance's appointment as a trustee of the DPT in Ballinger's place. The plaintiff was entitled to costs on a 2B basis on the application.

Orders