Harrison v Harrison - [2019] NZHC 3474

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-000320

[2019] NZHC 3474

UNDER Rule 7.51 High Court Rules

IN THE MATTER

of The Valerie Geard Trust and CIV-2012- 404-993

BETWEEN

PAULINE JANICE HARRISON

Plaintiff

AND

ADRIENNE HARRISON

First Defendant

GRAEME ROSS HARRISON

Second Defendant

CIV-2018-404-002681

UNDER

Section 66 of the Trustee Act 1956, Part 19 High Court Rules and the inherent
jurisdiction of the High Court

IN THE MATTER

of The Valerie Geard Trust

BETWEEN

ADRIENNE HARRISON and GRAEME

ROSS HARRISON as trustees of The Valerie Geard Trust

Applicants

AND

PAULINE JANICE HARRISON

Respondent

Hearing: 14, 15 and 16 October 2019

Appearances:

Ms P J Harrison in person

P M Webb for A Harrison and G R Harrison R A Rose for ChildFund

Judgment:

20 December 2019

PAULINE JANICE HARRISON v ADRIENNE HARRISON [2019] NZHC 3474 [20 December 2019]

JUDGMENT OF BREWER J

This judgment was delivered by me on 20 December 2019 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Introduction

[1]This judgment determines the following two proceedings:

(a)Pauline Harrison v Adrienne Harrison and Graeme Ross Harrison (CIV-2018-404-320) (“the 320 proceeding”), being a claim for relief under r 7.51 of the High Court Rules in respect of the interlocutory orders made by Toogood J in Valerie Geard Family Trust v Harrison;1 and

(b)Adrienne Harrison and Graeme Ross Harrison v Pauline Harrison (CIV-2018-404-2681) (“the 2681 proceeding), being an application under s 66 of the Trustee Act 1956 for orders for distribution and the winding up of the Valerie Geard Trust.

[2] The 320 proceeding and the 2681 proceeding were consolidated by Associate Judge PJ Andrew on 11 December 2018.

Background

[3] I take the background of these proceedings from the succinct summary of Toogood J:2

[1] On 18 October 2005, a terminally ill Valerie Margaret Geard settled a family trust (“the Valerie Geard Trust” or “the Trust”) appointing the first defendant (her brother Graeme Harrison) and the second defendant (her sister- in-law Adrienne Harrison) as trustees. The final beneficiaries of the Trust

1 Valerie Geard Family Trust v Harrison [2013] NZHC 385.
2 Valerie Geard Family Trust v Harrison, above n 1.

were Mrs Geard’s siblings who then comprised Graeme Harrison, Brian Harrison, Malcolm Harrison and the second plaintiff Pauline Harrison. The discretionary beneficiaries included Mrs Geard, her husband David, the final beneficiaries, and Child Fund New Zealand Limited.

[2] At the time of the settlement of the Trust, Mrs Geard signed a memorandum which included an indication that she wished her brother Malcolm to be the primary beneficiary of the Trust. The memorandum included also a wish that her husband should be able to continue to reside in the home he shared with Mrs Geard for a sufficient period of time to ensure an orderly transition to an alternative property following Mrs Geard’s death. The memorandum also expressed wishes as to how the Trust funds should be applied on 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 Harrison v Harrison

Details

AGLC: Harrison v Harrison [2019] NZHC 3474
Case: [2019] NZHC 3474
Decision Date: 20 December 2019

CaseChat Overview and Summary

This case involves two proceedings, one being a claim for relief under r 7.51 of the High Court Rules in respect of interlocutory orders made by Toogood J in the Valerie Geard Family Trust case, and the other being an application under s 66 of the Trustee Act 1956 for orders for distribution and the winding up of the Valerie Geard Trust. The proceedings were consolidated by the Associate Judge. Pauline Janice Harrison claims that Graeme Ross Harrison and Adrienne Harrison, as trustees of the Valerie Geard Trust, have breached their obligations by keeping and using the Trust’s property for their own benefit to the exclusion of herself and her brother, Brian Harrison. Graeme and Adrienne Harrison deny these allegations and seek directions for the distribution and winding up of the Trust. The court found that Ms Pauline Harrison's claim for relief in the 320 proceeding was dismissed. The court also found that the trustees' actions were proper and careful, and there was no evidence of fraud or improper dealing with the assets of the Trust. The court approved the proposed distribution to David Geard of $20,000. However, the court did not approve the additional distribution of $50,000 to ChildFund. The court directed the Trust be wound up and the assets, once all due expenses have been paid, be paid in three equal parts: one part to Graeme Harrison; one part to Pauline Harrison; and, one part to the children of Brian Harrison. The court also directed that a sum equal to 2B costs in the 320 and 2681 proceedings shall be deducted from the portion that would otherwise be paid to Ms Pauline Harrison; one half of that sum shall be added to the portions of Graeme Harrison and the children of Brian Harrison.

Orders