Glover Trust Ltd v Glover Trust Corp Ltd - [2013] NZHC 545

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-6931 [2013] NZHC 545

BETWEEN THE GLOVER TRUST LIMITED, BAILEY TRUSTEE SERVICES LIMITED AND AUCKLAND WEST LEGAL SERVICES LIMITED AS TRUSTEES OF THE GLOVER TRUST
Plaintiffs

ANDGLOVER TRUST CORPORATION LIMITED
First Defendant

ANDGLOVER NO.2 LIMITED Second Defendant

Hearing: 4, 5 and 7 February 2013

Appearances: J P Nolen for plaintiffs
R C Knight for defendants

Judgment: 20 March 2013

JUDGMENT OF ALLAN J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.00pm on 20 March 2013

Solicitors/counsel :
Lowndes Associates nolen@lowndeslaw.com
R C Knight Auckland rck@rossknight.co.nz

THE GLOVER TRUST LTD & ORSAS TRUSTEES OF THE GLOVER TRUST V GLOVER TRUST CORPORATION LTD & ANOR HC AK CIV 2012-404-6931 [20 March 2013]

Introduction

[1] This proceeding is concerned with the proposed development of a group of properties at Waimarie Street in St Heliers, Auckland. The parties are involved, in one capacity or another, in a scheme governed by a joint venture agreement and various supplementary documents. In broad terms, the object of the joint venture is to carry out certain earth works and then to construct high value houses or apartments on the land for ultimate sale.

[2] A disagreement arose between the joint venture partners. The plaintiffs issued this proceeding with a view to obtaining orders for the transfer of certain shares and of some of the Waimarie Street properties. Agreement was reached in respect of the shares, and on 5 February 2013, during the hearing, I made consent orders for the transfer of shares, the execution of the necessary documents and the entry of the share transfers in the relevant share registers.

[3] That left for determination a dispute between the parties as to the legal and beneficial ownership of the disputed properties.

Background

[4] The joint venture was established in furtherance of the business activities of Mr Gregory Olliver and his wife, Mrs Sarah Olliver. They separated on 4 July 2012. Mrs Olliver is now known as Ms Sparks, and I will refer to her by that name in this judgment. Mr Olliver is a well known property developer. Ms Sparks is an experienced business-woman in her own right, owning and operating her own public relations company.

[5] In September 1999, Mr Olliver established the Glover Trust. It was then called the Waimarie Trust, but it changed its name in 2005. Subsequently, Ms Sparks established her own trust, using the Waimarie Trust name. References in this judgment to the Waimarie Trust are to the trust established by her.

[6] Mr Olliver and Ms Sparks were trustees of the Glover Trust along with certain professional advisers or companies controlled by those advisers. There were changes of trustee from time to time over the years but they are not material to this case.

[7] In 2008, Mr Olliver got into financial difficulty. On 12 December 2008, a creditor filed an application to have him adjudicated bankrupt. On 5 February 2009,…

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.

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Details

Case: [2013] NZHC 545
Decision Date: 20 March 2013

CaseChat Overview and Summary

The High Court of New Zealand was presented with a dispute between The Glover Trust Limited, acting as trustees of the Glover Trust, and Glover Trust Corporation Limited and Glover No.2 Limited regarding the legal and beneficial ownership of certain properties in St Heliers, Auckland. The Glover Trust and the Waimarie Trust had established a joint venture to develop a group of properties, but disagreements arose after the separation of Mr Olliver and Ms Sparks, who were trustees of the Glover Trust. The central issue was whether the Deed of Bare Trust, executed on 10 March 2011, was a valid document that should prevail over other documents executed on the same day. The Deed of Bare Trust declared that certain properties were held on a bare trust for CIT Holdings Ltd, while other documents suggested a trust for the beneficiaries of the Glover No.2 Trust. Allan J held that the Deed of Bare Trust was valid and effective, and that the second tranche properties were held in trust for CIT Holdings Limited. Consequently, Glover No.2 Limited was ordered to execute a registrable transfer of the properties to the plaintiffs. Allan J also noted potential difficulties in executing the order due to the encumbrance of the properties and reserved leave for further applications regarding the matter. The plaintiffs were awarded costs.

Orders