Gough v Strahl - [2013] NZHC 3184

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-1574 [2013] NZHC 3184

BETWEEN HARCOURT DAVID GOUGH Plaintiff

ANDJOHN RUSSELL STRAHL First Defendant

AVENAL BERYL ELIZABETH MCKINNON
Second Defendant

CIV-2012-485-2027

BETWEEN AVENAL BERYL ELIZABETH MCKINNON
Plaintiff

ANDJOHN RUSSELL STRAHL First Defendant

HARCOURT DAVID GOUGH Second Defendant

Hearing: 4-6 November 2013

Counsel: N W Ingram QC and M T Kyriak for Mr Gough
R J B Fowler QC for Mr Strahl
J W A Johnson and H T Shaw for Mrs McKinnon

Judgment: 29 November 2013

INTERIM JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is
4.50 pm on the 29th day of November 2013.

Solicitors: Kyriak Law, Auckland, for Mr Gough
DLA Phillips Fox, Wellington, for Mr Strahl
Wynn Williams Lawyers, Christchurch, for Mrs McKinnon

GOUGH v STRAHL [2013] NZHC 3184 [29 November 2013]

Background

[1] Mr Tracy Thomas Gough was a successful businessman who established a substantial business, Gough Gough and Hamer Limited (GGH).

[2] Mr T T Gough was married twice. There were three children of his first marriage, two daughters (one of whom predeceased him) and a son. After his first wife’s death, he remarried and there was one child of this second marriage, a son. He died in 1954 and was survived by: his second wife; the surviving daughter of his first marriage, Miss B D Gough (who had no issue); the son of his first marriage, Mr O T Gough; and the son of his second marriage, Mr B T Gough. Mr O T Gough had four children. They were three sons; Harcourt, Tracy and Antony Gough; and a daughter, Avenal McKinnon. Mr B T Gough had two children, Gina Satterthwaite and Ben Gough. In this judgment, I shall refer to the children of Mr O T Gough and Mr B T Gough by their christian names. I do so for convenience and clarity, and intend no disrespect.

[3] Mr T T Gough left a substantial estate. From the time of his death, through to the present, there has been a history of litigation and family disputes. A quite complex trust structure has been created. That litigation, and the structure, forms the background to the present litigation. A brief description is necessary.

[4] In 1955, Mr T T Gough’s surviving daughter, Miss B D Gough, issued proceedings for further provision from the estate, under the Family Protection Act 1955. Those proceedings led to a long and difficult series of negotiations, which resulted in a Deed of Family Arrangement, approved by the (then) Supreme Court in
1962.1 The assets of the estate (which in substantial measure consisted of shares in

GGH) were to be held on the trusts set out in the Deed of Family Arrangement (which varied the trusts in the will). The broad effect of the trusts was that, subject to the payment of several annuities, the capital of the estate was held on trust as to one half for the issue of Mr O T Gough and as…

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 Gough v Strahl

Details

AGLC: Gough v Strahl [2013] NZHC 3184
Case: [2013] NZHC 3184
Decision Date: 29 November 2013

CaseChat Overview and Summary

The High Court of New Zealand heard a consolidated case involving disputes over the O T Gough Family Trust, established in 1987. Avenal McKinnon sought a distribution of her share from the Trust, while Harcourt Gough contested her request. Mr Strahl, the sole remaining trustee, sought directions from the court on various matters, including Avenal's request for distribution and the appointment of new trustees. The court had to determine whether Avenal's request for distribution should be met, who should be appointed as trustees, whether Harcourt is a beneficiary of the Trust, and whether directions should be given regarding the indemnity or release of Mr Farrant and Mr Hagan as retiring trustees of the O T Gough Family Trust. The court found that Avenal was entitled to have her share of the assets distributed to her, as there were no special circumstances to prevent distribution. The court also held that the inter-family conflict and the potential liability of the trust under cl 16 of the 1999 Deed were not special circumstances that should prevent a distribution to Avenal. The decision on the appointment of trustees was deferred until Avenal's share in the corpus of the Trust was distributed to her. The court also decided that it was not appropriate to address the question of Harcourt's entitlement in the present proceedings, as they were presently constituted, and adjourned this aspect of the proceedings. Lastly, the court found that no reason had been shown which would persuade it that it would be inappropriate for Mr Strahl to grant an indemnity to the retiring trustees, and did not give any direction on the point. The court issued this judgment as an interim judgment, reserving leave to any party to apply further as necessary and reserving costs.

Orders