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Harrison v Harrison

Harrison v Harrison

Case [2020] NZHC 3066 19 November 2020

Civil Litigation & Procedure

Trusts & Equity

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2078

CIV-2019-404-2566 [2020] NZHC 3066

IN THE MATTER Of the Valerie Geard Trust

BETWEEN

PAULINE JANICE HARRISON

Plaintiff

AND

ADRIENNE HARRISON and GRAEME

ROSS HARRISON as trustees of the Valerie Geard Trust

Defendants

Hearing: 30 July 2020

Appearances:

A J Harrison as litigation guardian for the plaintiff in both proceedings

P M Webb for the first defendants in CIV-2019-404-2566 and defendants in CIV-2019-404-2078

M Carlson for the second defendant in 2566 The third defendant in 2566 in person

R A Rose for the fourth defendant in 2566
S C P Gollin and H M Jacques for the fifth defendants in 2566

Judgment:

19 November 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 19 November 2020 at 4 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HARRISON v HARRISON [2020] NZHC 3066 [19 November 2020].

CIV-2019-404-2566

BETWEEN PAULINE JANICE HARRISON
Plaintiff

ANDADRIENNE HARRISON and GRAEME ROSS HARRISON as
trustees of the Valerie Geard Trust

AND NICHOLAS HAMILTON BIRDSEY
Second Defendant
RAYMOND OWEN PARMENTER
Third Defendant
CHILDFUND NEW ZEALAND LIMITED
Fourth Defendant
ASB BANK LIMITED
Fifth Defendant

[1] This judgment deals with a number of interlocutory applications in relation to two proceedings brought by the plaintiff, Pauline Harrison:

(a) CIV-2019-404-2078 (“the 2078 proceedings”); and

(b) CIV-2019-404-002566 (“the 2566 proceedings”).

[2] In the 2078 proceedings Ms Harrison seeks a range of relief against Adrienne Harrison and Graeme Ross Harrison as trustees of the Valerie Geard Trust (“the trustees”). The trustees are also the first defendants in the 2566 proceedings. The other defendants in the 2566 proceedings are:

(a)Nicholas Birdsey (the second defendant) a conveyancing solicitor who has acted for the trustees;

(b)Raymond Parmenter (the third defendant), a barrister who previously acted for the trustees in respect of a number of proceedings brought by Ms Harrison;

(c)ChildFund NZ Ltd (“ChildFund”)(the fourth defendant), a discretionary beneficiary of the Valerie Geard Trust; and

(d)the ASB Bank (“ASB”) (the fifth defendant).

[3] In the 2078 proceedings Ms Harrison contends that the Valerie Geard Trust was wound up by operation of law on or about 14 December 2009 and at that point the Trust assets automatically vested in the final beneficiaries, including Ms Harrison, in equal shares as tenants in common. Ms Harrison claims that the trustees have fraudulently breached the terms of the Valerie Geard Trust trust deed and therefore seeks a “full and complete trust accounting with supporting evidence”, “compensatory restitution by [the trustees] in their personal capacity to restore the plaintiffs equal share of beneficial entitlement lost by their breaches of trusts” and “compensatory monetary damages to the sum of $100,000 for severe punitive detriment”.

[4] In contrast, in the 2566 proceedings Ms Harrison alleges that each of the defendants has acted “in wilful reckless defiance” of a November 2015 judgment issued by Faire J on an application by the trustees seeking approval to vest the assets of…

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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2020] NZHC 3066
Case: [2020] NZHC 3066
Decision Date: 19 November 2020

CaseChat Overview and Summary

This case involved interlocutory applications brought by the trustees of the Valerie Geard Trust and other defendants in two proceedings brought by Pauline Janice Harrison. The first proceeding, CIV-2019-404-2078, was brought against the trustees and sought, among other things, an accounting of the trust and damages for breaches of trust. The second proceeding, CIV-2019-404-2566, was brought against the trustees, a solicitor, a barrister, a discretionary beneficiary of the trust and a bank, and sought, among other things, contempt fines and damages for breaches of a court order and the bank's statutory obligations. The defendants brought applications for security for costs, striking out of claims and orders preventing Ms Harrison from commencing or continuing proceedings. Ms Harrison opposed the applications. The Court found that the proceeding brought against the trustees was an abuse of process and was struck out. The claims against the bank were also struck out as Ms Harrison had no standing to bring the claims. Security for costs in the proceeding brought against all defendants was granted in the sum of $80,000. Finally, an order was made preventing Ms Harrison from commencing or continuing proceedings for five years in respect of the Valerie Geard Trust, the Valerie Geard Waiheke Trust or the applicants in a personal or trustee capacity.

Orders