Gibbons v Alington - [2023] NZHC 483

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-100

[2023] NZHC 483

BETWEEN
HARRY HAWTIN GIBBONS AND CATHERINE BEATRICE ALINGTON

First Applicants

PERPETUAL TRUST LIMITED

Second Applicant

AND

WILLIAM HILDEBRAND ALINGTON

Respondent

Hearing: On the papers

Appearances:

A R Davie for the applicants

Judgment:

13 March 2023

JUDGMENT OF COOKE J

(Vesting property in new trustees)

[1] By interlocutory application without notice dated 27 February 2023 the applicants seek directions that these proceedings be brought under Part 19 of the High Court Rules 2016, and that the application be brought without notice to any other person.

[2] In addition the proposed originating application has been provided in which the applicants seek orders that they be appointed as trustees of the WH & MH Alington Family Trust (the Trust) in substitution for existing trustee, William Hildebrand Alington, and that the property at 30 Friend Street, Karori be vested in the first and second applicants. They also seek orders dispensing with service on the respondents and beneficiaries of the Trust, together with any other orders necessary or desirable for the proper administration of the Trust.

GIBBONS v ALINGTON [2023] NZHC 483 [13 March 2023]

[3] The applications are supported by an affidavits from each of the first applicants both sworn 20 February, together with a memorandum of counsel.

[4] The documents were referred to me as Duty Judge. By minute dated 3 March 2023 I directed that information be provided on the stance of Giles Arlington. He is the son of William Arlington, and holds his power of attorney. An affidavit dated 7 March 2023 outlining his support for the applications was filed as a consequence.

[5] Having considered what has been filed I consider that the matters can appropriately be dealt with on the papers. The matters should proceed under Part 19, and there is no need for the applications to be served on any other parties. The orders, the application and proposed draft application can be granted. These are my reasons.

The facts

[6] The facts are a little complicated as a number of steps were taken in the administration of this Trust in an imperfect, or imprecise way. But notwithstanding that complexity this is a straightforward matter where orders from the Court are appropriate to regularise the proper administration of the Trust.

[7] The Trust was settled in 1986 with William Alington, Margaret Alington and Shirley Murray as the original trustees. The Trust Deed required there to be a minimum of two trustees.

[8] The first applicants are the daughter of William and Margaret Alington, and Mr Gibbons, a long-standing friend of her father of some 22 years. Both were apparently appointed as replacement trustees in the circumstances referred to below, and both are willing to continue in that role. Margaret Alington passed away in 2022, and Shirley Murray also passed away in 2020. The point of the applications is to ensure that all of the applicants are validly…

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 Gibbons v Alington

Details

AGLC: Gibbons v Alington [2023] NZHC 483
Case: [2023] NZHC 483
Decision Date: 13 March 2023

CaseChat Overview and Summary

Gibbons v Alington is a case before the High Court of New Zealand, wherein the applicants seek to be appointed as trustees of the WH & MH Alington Family Trust. The applicants are Harry Hawtin Gibbons and Catherine Beatrice Alington, and they also seek to have the property at 30 Friend Street, Karori vested in them. The respondent is William Hildebrand Alington, who is the existing trustee of the Trust. The applicants' requests include being appointed as trustees, vesting the property in them, and dispensing with service on the respondents and beneficiaries of the Trust. The court was required to decide if the applicants should be appointed as trustees and if the property should be vested in them. The court accepted that the applicants should be appointed as trustees and the property vested in them. The court based its decision on the fact that the applicants were willing to continue in their roles, and there were doubts regarding the effectiveness of the deeds executed to appoint the trustees. Additionally, it was established that William Alington no longer had the mental capacity to act as a trustee, and his son, Giles Arlington, who holds his power of attorney, supported the applicants' requests. The final orders of the court were that the applicants be appointed as trustees and the property at 30 Friend Street, Karori be vested in them. Leave was reserved to address any residual technical matters, including in relation to the form of the orders required.

Orders