ORDER THAT THERE IS TO BE NO PUBLICATION OR FURTHER DISTRIBUTION OF THE CONTENTS OF THIS JUDGMENT OR THE RESULT, UNTIL 5PM WEDNESDAY 10 JUNE 2015. SEE PARAGRAPH [675].
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2013-404-4840 [2015] NZHC 1218
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
GREEN v GREEN, FISHER & ORS [2015] NZHC 1218 [3 June 2015]
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 on 21 August 2012
UNDER
Part 27 and Rule 27.34 of the High Court Rules
BETWEEN
MARYANNE GREEN Plaintiff
AND
MICHAEL FISHER, JOHN PATRICK GREEN, FRANCES KATHLEEN GREEN AND ROBERT NAREV Defendants
Hearing:
12-15, 18-22, 25-29 August 2014
1-5, 15-17 September 2014 25-26 November 2014
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:
3 June 2015
JUDGMENT OF WINKELMANN J
This judgment was delivered by me on 3 June 2015 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Table of contents Para
1 Introduction [1]
2 Factual background [12]
2.1 The legal entities [12]
2.2 The people [16]
2.3 Events leading up to the challenged decisions [28]
2.4First challenged decision: appointment of John and Frances as trustees of three trusts on 8 November 2011
2.5Second challenged decision: appointment of John and Frances as directors of the main companies in the Green Group on 5 December
2011
2.6 Third challenged decision: removal of Maryanne as a trustee on 20
December 2011
2.7 Fourth challenged decision: appointment of Mr Fisher as trustee on 29
March 2012
2.8Fifth and sixth challenged decisions: appointment of Mr Fisher as director of all trust owned companies on 2 April 2012, and the removal of Maryanne as a director of all trust owned companies on 2 April and
29 April 2012
2.9 Seventh challenged decision: Hugh’s execution of a new will on 26
April 2012 appointing Mr Fisher, John and Frances (together with Mr
Narev) his executors and trustees
[72] [73]
[74] [76] [77]
[80]
2.10
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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AGLC
Green v Green [2015] NZHC 1218
Case
[2015] NZHC 1218
Decision Date
CaseChat Overview and Summary
The case of Green v Green involves a complex dispute within the Green family over the control of a large family business and associated trusts, worth hundreds of millions of dollars. The founder of the business, Hugh Green, died in 2012, leaving his daughter Maryanne, who had previously managed the business, in a significantly reduced role. She challenges the validity of several decisions made by Hugh in the last months of his life, arguing that he lacked the capacity to make those decisions and that they were influenced by undue influence from his son, John, and lawyer, Michael Fisher. The court was required to decide on the principles governing challenges to capacity and undue influence, assess the evidence relating to Hugh's capacity, and determine whether the decisions were validly made. The court found that Hugh was subject to undue influence when he executed his last will and when he exercised certain powers, leading to the invalidity of those decisions. The court also found that Hugh had the capacity to make the decisions in question, but that the influence exerted by John and Fisher overbore his free will. The court ordered the recall of the grant of probate for the will dated 26 April 2012, the removal of Michael Fisher as a trustee, and the reinstatement of Maryanne as a trustee. The court deferred making orders to remove other trustees until further submissions were heard, and ordered interim trustees to be appointed.