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…
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- Gavin v Powell [2018] NZHC 2866
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- [2018] NZHC 2866
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