Gibbs v Windmeyer

[2022] NZHC 2236

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-859

[2022] NZHC 2236

UNDER

Part 18 of the High Court Rules, section 112 of the Trusts Act 2019 and the High Court’s inherent supervisory jurisdiction in relation to trusts

BETWEEN

ANTHONY BRYON GIBBS as beneficiary of the Ruby Cove Legacy Trust

Plaintiff

AND

JOSEPH MICHAEL WINDMEYER as

trustee of the Ruby Cove Legacy Trust First Defendant

VALERIE JANE GIBBS as trustee of the Ruby Cove Legacy Trust

Second Defendant

CHARLOTTE ANNE GIBBS as trustee of the Ruby Cove Legacy Trust

Third Defendant

…/cont

Hearing:

2 September 2022

Appearances:

V Bruton QC and P Brown for the Plaintiff A Galbraith QC for the Defendants

S McCarthy QC as Litigation Guardian for O

Judgment:

2 September 2022

JUDGMENT OF GORDON J

This judgment was delivered by me on 2 September 2022 at 3:30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GIBBS v WINDMEYER [2022] NZHC 2236 [2 September 2022]

CIV-2021-404-1623

UNDER  the Family Protection Act 1955 AND

IN THE MATTER OF     the Estate of ANTHONY IAN GIBBS

BETWEEN  ANTHONY BRYON GIBBS

Plaintiff

AND  VALERIE JANE GIBBS and

CHARLOTTE ANNE GIBBS as executors of the Estate of Anthony Ian Gibbs Defendants

Solicitors:           P Brown, Auckland

Wilson Harle, Auckland
W Patterson, Patterson Hopkins, Auckland

Counsel:V Bruton QC, Auckland A Galbraith QC, Auckland

S McCarthy QC, Auckland

[1]    The plaintiff, Anthony (Ant) Gibbs has commenced two sets of proceedings in this Court. The parties in both proceedings now seek orders by consent settling all matters between them.

Background

[2]    Ant and his sister Charlotte are the only children of Valerie (Val) and the late Anthony Ian Gibbs (Tony). In July 2015 Val and Tony settled a trust named the Ruby Cove Legacy Trust (Trust). The trustees of the Trust are Charlotte, Val and a solicitor, Joseph Windmeyer (together the trustees). The Discretionary Beneficiaries (defined in the Trust Deed) are currently Val, Charlotte and Ant. The children of Charlotte and Ant will become Discretionary Beneficiaries upon the death of their respective parent.

[3]    Tony died in 2020. Ant filed the proceeding in CIV-2021-404-859 (Trust proceeding) on 6 May 2021 and the proceeding in CIV-2021-404-1623 (Family Protection proceeding) on 11 August 2021 (together the Proceedings).

[4]    In the Trust proceeding Ant seeks the removal and replacement of the trustees. In the Family Protection proceeding Ant alleges a breach of moral duty by Tony to him.

[5]    On 23 August 2022 the parties reached a conditional settlement of the Proceedings and executed an agreement (Agreement) recording the terms of settlement. The Agreement was also executed by Stephen McCarthy QC, litigation guardian for Ant’s son O, on O’s behalf.

Consent orders sought

[6]    The Agreement is conditional on approval of its terms by this Court because it concerns the distribution of Trust assets and the contingent beneficial interests of minors. Counsel for the parties to the Proceedings and Mr McCarthy have filed a joint memorandum dated 30 August 2022 (joint memorandum) seeking approval of the terms of the Agreement by way of consent orders.

[7]    In the joint memorandum the trustees of the Trust also seek directions under  s 133 of the Trusts Act 2019, by consent, approving the trustees’ decision to enter into the Agreement.

[8]    As well the joint memorandum seeks an order by consent that the Court’s copy of the Agreement and the joint memorandum of counsel be sealed on the Court file in an envelope labelled “Only to be opened with leave of a Judge of this Court”. The parties say the Agreement is confidential to them and their legal advisers. Counsel also applied at the hearing for the Trust Deed for the Trust to be similarly sealed on the Court file.

[9]    In making the application for sealing the parties refer to the order the Court made on 13 April 2022 under r 5(2) of the Senior Courts (Access to Court Documents) Rules 2017 that the judgments, orders, documents or files of any kind in the Trust proceeding may not be accessed without the permission of a Judge. At the time the Court made that order it was only the Trust proceeding that was before the Court. At the hearing counsel asked for a similar order to be made in respect of the Family Protection proceeding. I will make such an order for reasons of consistency.

Decision

[10]   As noted above the application is made by way of a memorandum rather than by way of a formal application.1 Given the “application” is by consent of all parties, including the litigation guardian for O, the Court will accept the application by way of joint memorandum.2

[11]   I have considered the terms of the Trust Deed, the Agreement and the joint memorandum of counsel. I accept the submission that the Agreement is in the best interests of the Trust, the beneficiaries of the Trust and O, and addresses any (potential) breach of moral duty. For the reasons set out in the joint memorandum I will make the orders sought by consent.

1      Applications by trustees for directions under s 133 of the Trusts Act are generally made under Part 18 of the High Court Rules 2016. See Macnamara v Macnamara [2021] NZHC 2361 at [16].

2      See Wilkinson v Wilkinson [2019] NZHC 1729 where the Court accepted a joint memorandum by the parties in proceedings under the Family Protection Act 1955 and Trustee Act 1956 seeking an order settling the proceedings.

Orders

[12]I make the following orders by consent:

(a)I approve the terms of the Agreement;

(b)Under s 133 of the Trusts Act 2019 I approve the trustees entering into the Agreement;

(c)The joint memorandum of counsel and the Agreement are to be sealed on the Court file for each of the two proceedings in envelopes labelled “Only to be opened with leave of a Judge of this Court”.

(d)The Trust Deed is also to be sealed on the Court file for the Trust proceeding together with the joint memorandum of counsel and the Agreement (it is not necessary for a copy of the Trust Deed to also be placed on the Court file for the Family Protection proceeding); and

(e)The Court file in the Family Protection proceeding is not to be accessed without the permission of a Judge of this Court.

Gordon J