Goldie v Campbell - [2017] NZHC 1692

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002601 [2017] NZHC 1692

BETWEEN
DENISE KAY CAMPBELL GOLDIE

Appellant

AND

ROBIN MCGREGOR CAMPBELL First Respondent

ROBIN MCGREGOR CAMPBELL, JOHN CHARLES WILKINSON AND ROGERS & RUTHERFORD TRUSTEES

2007 LIMITED AS TRUSTEES OF THE ROBIN CAMPBELL FAMILY TRUST Second Respondent

Hearing: 16 March 2017

Appearances:

Brent OʼCallahan for the Appellant
Lisa La Mantia for the First Respondent
No appearance for the Second Respondent

Judgment:

21 July 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 21 July 2017 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

GOLDIE v CAMPBELL & ANOR [2017] NZHC 1692 [21 July 2017]

Introduction

[1] The parties are embroiled in a dispute under the Property Relationships Act

1975 (“the PRA”).

[2] The appellant, Ms Goldie, claims that the respondent, Mr Campbell, has property interests by virtue of his powers in relation to a family trust which was settled in 2007 about nine years after Ms Goldie and Mr Campbell commenced their relationship.

[3] Ms Goldie claims that the terms of the trust favoured Mr Campbell; he has the power to control, at will, the assets of the trust for his own purposes or to his own ultimate benefit with the effect that the trust property is relationship property under the PRA.

[4] Mr Campbell counters this claim by reference to the provisions of the trust and Memoranda of Guidance prepared for the benefit of the trustees. He says that his powers under the trust do not constitute relationship property because he is fettered both as appointor and as a trustee to such an extent that any powers he does possess did not enable him to control the trust assets for his own purposes or to his own ultimate benefit.

[5] In advancing their respective cases, both parties rely on the judgment of the

Supreme Court in Clayton v Clayton.1

[6] At first instance the Family Court held that the provisions of Mr Campbell’s trust were readily distinguishable from the powers and entitlements vested in Mr Clayton because Mr Campbell was fettered both as a trustee and appointor. Thus any powers he held fell far short of any mantle of ownership of the trust assets.

[7] Ms Goldie appeals that finding.

1 Clayton v Clayton [2016] NZSC 29, [2016] 1 NZLR 551.

Background

[8] The background is fully summarised in the decision of her Honour

Judge M Southwick QC.

[9] The respondent, Robin Campbell, married his first wife, Elaine, in 1966. In

1990 the couple purchased a property at 14A Takutai Avenue, Bucklands Beach (“the

Takutai property”).

[10] In August 1995 the couple established two mirror trusts. These were the E M Campbell Family Trust (the “EMCFT”) and the…

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 Goldie v Campbell

Details

AGLC: Goldie v Campbell [2017] NZHC 1692
Case: [2017] NZHC 1692
Decision Date: 21 July 2017

CaseChat Overview and Summary

Goldie, the appellant, appeals a Family Court decision that found that the respondent, Campbell, does not hold property interests in the Robin Campbell Family Trust (the Trust). The Trust was settled in 2007 with the aim of protecting the interests of Campbell’s two daughters, who are the discretionary and final beneficiaries. The Family Court found that Campbell’s powers under the Trust deed were fettered to the extent that he could not control the trust assets for his own purposes or to his own ultimate benefit. The court held that the Trust was not relationship property under the Property Relationships Act 1975. The appeal was dismissed by the High Court. The court found that Campbell’s powers under the Trust deed were sufficiently constrained by the terms of the deed, and by the fiduciary duties he owed to the beneficiaries, such that he could not control the assets of the Trust for his own benefit. The appeal was dismissed with costs.

Orders