Green v Green - [2015] NZHC 1526

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-4840 [2015] NZHC 1526

IN THE MATTER OF
The Hugh Green Trust and the Hugh

Green Property Trust

UNDER

Part 18 of the High Court Rules and section 51 of the Trustee Act 1956

BETWEEN

MARYANNE GREEN Plaintiff

AND

JOHN PATRICK GREEN First Defendant

MICHAEL JOHN FISHER Second Defendant

JOHN PATRICK GREEN, MICHAEL JOHN FISHER, FRANCES KATHLEEN GREEN AND JOHN JAMES GOSNEY (as presently named trustees of a trust known as the Hugh Green Trust, settled by deed dated 7 June 1968)

Third Defendants

JOHN PATRICK GREEN, MICHAEL JOHN FISHER, FRANCES KATHLEEN GREEN AND JOHN JAMES GOSNEY (as presently named trustees of a trust known as the Hugh Green Property Trust , settled by deed dated 20 March 1989) Fourth Defendants

CIV-2013-404-3676

IN THE MATTER OF The ESTATE OF HUGH GREEN, and the grant of probate of a will dated 26 April

2012 by the High Court at Auckland under

CIV-2012-404-004791

UNDER Part 27 and Rule 27.34 of the High Court
Rules

GREEN v GREEN, FISHER & ORS [2015] NZHC 1526 [2 July 2015]

BETWEEN
MARYANNE GREEN

Plaintiff

AND

MICHAEL FISHER, JOHN PATRICK GREEN, FRANCES KATHLEEN GREEN AND ROBERT NAREV Defendant

Hearing: 18 June 2015

Appearances:

V Bruton, G Harley, P A Brown for plaintiff
SBW Grieve QC for first defendant in CIV-2013-404-4840
R B Stewart QC, R B Lange, J Ryan for all defendants in
CIV-2013-404-4840
H Waalkens QC for defendants in probate proceeding
CIV-2013-404-3676
S Hunter, S Ambler for Ms Piper

Judgment:

2 July 2015

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 2 July 2015 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

[1] In a judgment dated 3 June 2015 I found that Hugh Green exercised various powers subject to the undue influence of his son, John Green.1 I also ordered the recall of the grant of probate for Hugh Green’s will dated 26 April 2012 on the basis that Hugh had been subject to undue influence when he executed that will. I sought submissions on the appropriate relief in light of those findings.2 At a hearing on 18
June 2015 I heard counsel in relation to the issue of relief. Most orders are able to be made on a consent basis, although I record that the defendants reserve their rights in respect of all issues determined in the proceedings. Their consent to any orders is not a waiver of any appeal rights they have.

Status of Maryanne Green as a trustee of the Hugh Green Trust and the Hugh
Green Property Trust

[2] In the judgment of 3 June 2015 I found that Maryanne Green had not been validly removed as a trustee of these trusts, and in any case had been validly reappointed. The parties agree that a declaration should issue that Maryanne Green is a trustee of the Hugh Green Trust and the Hugh Green Property Trust. However in advance of the hearing 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 Green v Green

Details

AGLC: Green v Green [2015] NZHC 1526
Case: [2015] NZHC 1526
Decision Date: 2 July 2015

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over the case of Green v Green, wherein Maryanne Green initiated proceedings against several defendants, including her ex-husband John Patrick Green and others, regarding the management and administration of the Hugh Green Trust and the Hugh Green Property Trust, as well as the grant of probate of Hugh Green's will. The central dispute revolved around allegations of undue influence exerted by John Green on Hugh Green, impacting the validity of certain trusts and directorship appointments. The court was tasked with determining the appropriate relief following findings of undue influence, including the validity of trustee and director appointments, and the need for interim trustees.

The legal issues encompassed the validity of trustee and director appointments, the consequences of undue influence on these appointments, and the appropriateness of appointing interim trustees. The court had to decide whether certain trustees and directors were validly appointed, considering the undue influence findings, and if so, what relief was appropriate. Additionally, the court needed to address the appointment of interim trustees to ensure stability and proper management of the trusts during the proceedings.

The court's reasoning centred on the findings of undue influence made in a previous judgment. It declared that several trustee and director appointments were invalid due to undue influence. The court also determined that Maryanne Green remained a valid trustee and director, albeit with restrictions on her active participation to foster stability. The court appointed two interim trustees, Christopher Darlow and David Harding Randell, to manage the trusts until further order, emphasizing their independence and impartiality. The court further ruled on the liability of trustees and directors and the costs associated with the proceedings.

The final orders declared the invalidity of certain trustee and director appointments, reinstated Maryanne Green as a trustee with restricted powers, appointed interim trustees, and outlined the responsibilities and remuneration of these trustees. The court also addressed the procedural aspects of future applications and reserved certain rights for the parties involved. The decision aimed to balance the need for stability in the management of the trusts with the necessity of addressing the undue influence allegations.

Orders