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…

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 Gibbs v Windmeyer

Details

AGLC: Gibbs v Windmeyer [2022] NZHC 2236
Case: [2022] NZHC 2236
Decision Date: 2 September 2022

CaseChat Overview and Summary

The case of Gibbs v Windmeyer involves a dispute between Anthony Bryon Gibbs, a beneficiary of the Ruby Cove Legacy Trust, and the trustees of the Trust, Valerie Jane Gibbs, Charlotte Anne Gibbs, and Joseph Michael Windmeyer. The proceedings were brought by Anthony Gibbs in two separate matters, one under the Family Protection Act 1955 and the other under Part 18 of the High Court Rules and the Trusts Act 2019. Anthony sought the removal of the trustees and alleged a breach of moral duty by his late father, Tony Gibbs. The parties reached a conditional settlement and sought approval from the court in the form of consent orders. The legal issues in the case were whether the terms of the settlement agreement were in the best interests of the trust, the beneficiaries, and any minors involved, and whether the trustees were entitled to seek approval from the court to enter into the settlement agreement.

The court accepted the submission that the settlement agreement was in the best interests of the trust, the beneficiaries, and the minor involved. The court found that the trustees were entitled to seek approval from the court to enter into the settlement agreement, and granted the orders sought by consent. The court also made an order that the court file in the Family Protection proceeding was not to be accessed without the permission of a judge of the court. The court sealed the settlement agreement and the joint memorandum of counsel on the court file, along with the Trust Deed for the Trust proceeding.

In summary, the court approved the terms of the settlement agreement and granted the orders sought by consent, including the sealing of certain documents on the court file. The court found that the settlement agreement was in the best interests of the trust, the beneficiaries, and the minor involved, and that the trustees were entitled to seek approval from the court to enter into the agreement. The court also made an order that the court file in the Family Protection proceeding was not to be accessed without the permission of a judge of the court.

Orders