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Gibbs v Windmeyer

Gibbs v Windmeyer

Case [2021] NZHC 2582 30 September 2021

Unconscionable Conduct

Specific Performance

Trusts & Equity

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-859

[2021] NZHC 2582

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

…/cont

Hearing: 7 September 2021

Appearances:

V Bruton QC and P Brown for the Plaintiff

A Galbraith QC and A Holden for the Defendants

Judgment:

30 September 2021

JUDGMENT OF GORDON J

This judgment was delivered by me
on 30 September 2021 at 12 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: P Brown, Auckland
Wilson Harle, Auckland

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

GIBBS v WINDMEYER [2021] NZHC 2582 [30 September 2021]

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

[1] The plaintiff, Anthony (Ant)1 Gibbs, who is a discretionary beneficiary of the Ruby Cove Legacy Trust (the Trust), has filed a proceeding seeking an order that the three defendants (together, the trustees) are removed as trustees of the Trust. He says that the trustees cannot act, and are not acting, fairly or reasonably towards him, are hostile to him, and unable to act impartially or in good faith towards him. He also says the second and third defendants, as qualifying beneficiaries, have a conflict of interest and should be removed on that additional basis.

[2] As part of his evidence in support of his claim, Ant wishes to rely on certain correspondence. On this interlocutory application2 he seeks a determination as to whether that correspondence is protected by settlement privilege under s 57(1) of the Evidence Act 2006. If so, he says that any settlement privilege should be set aside as allowing the privilege to be maintained “provides a cloak for unambiguous impropriety”3 by the trustees; and/or the interests of justice exception in s 57(3)(d) of the Evidence Act applies and that requires the correspondence to be disclosed in the proceeding.

[3] Ant also says any privilege attaching to the correspondence should be disallowed under the “dishonest purpose” test in s 67 of the Evidence Act. Finally, he says any privilege has been waived under s 65 of the Evidence Act.

[4]The trustees oppose the application.

Background

[5] Ant, who is aged 46 years, is the son of the late Tony Gibbs, who was a successful businessman. Mr Gibbs died on 14 June 2020. Mr Gibb’s widow, the second defendant, Valerie Gibbs, and Ant’s sister, the third defendant, Charlotte Gibbs, aged 48 years, are two of the trustees of the Trust. The third trustee is

1 I will refer to the plaintiff by his first name using the shortened version by which he is commonly known and…

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 [2021] NZHC 2582
Case: [2021] NZHC 2582
Decision Date: 30 September 2021

CaseChat Overview and Summary

The case of Gibbs v Windmeyer involved a claim by Anthony Gibbs, a beneficiary of the Ruby Cove Legacy Trust, seeking the removal of the trustees on the basis of alleged bias and lack of good faith. Anthony sought to rely on certain correspondence as evidence in support of his claim, but the trustees argued that the correspondence was protected by settlement privilege. The High Court of New Zealand was required to determine whether the correspondence was subject to settlement privilege under the Evidence Act 2006 and, if so, whether the privilege should be set aside. The Court found that the correspondence was protected by settlement privilege as it related to attempts to resolve disputes between the parties. The Court rejected Anthony's arguments that the privilege should be set aside on the basis of unambiguous impropriety or in the interests of justice, as there was insufficient evidence of impropriety by the trustees. The Court also found that there was no dishonest purpose warranting the disallowance of privilege under s 67 of the Evidence Act. Anthony's claim for the removal of the trustees and disclosure of the privileged correspondence was dismissed.

The Court ordered that the relevant paragraphs and exhibits in Anthony's affidavit be struck out and that the judgment be redacted as necessary to protect the privileged material. The Court reserved costs pending further submissions from the parties.

Orders