Harrison v Harrison

[2015] NZHC 2935

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1442 [2015] NZHC 2935

IN THE MATTER

of the Valerie Geard Waiheke Trust

IN THE MATTER

of a determination of a question arising in the administration of a trust, the determination of which is necessary or desirable to protect the trustees under

r 18.1(a)(ix) High Court Rules

BETWEEN

GRAEME ROSS HARRISON AND ADRIENNE HARRISON

Plaintiffs

AND

PAULINE JANICE HARRISON First Defendant

ANGELA JANICE HARRISON Second Defendant

CHILDFUND NEW ZEALAND LIMITED

Third Defendant

Hearing:

19 – 22 October 2015

Counsel:

RO Parmenter for plaintiffs
RA Rose for third defendant

PJ Harrison and Associate Judge Harrison, first and second defendants, in person

Judgment:

24 November 2015

JUDGMENT OF FAIRE J

This judgment was delivered by me on 24 November 2015 at 12:45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Harrison v Harrison [2015] NZHC 2935 [24 November 2015]

Contents

Introduction ............................................................................................................[1] First defendant’s status in this proceeding .............................................................[7] Factual background ................................................................................................[8] Documents executed by Valerie Geard on 18 October 2005 ...............................[12] Factual background subsequent to Valerie Geard’s death ....................................[21] The issues .............................................................................................................[45] Analysis ................................................................................................................[48]

What interest does the first defendant have as a final beneficiary and as a discretionary beneficiary in the Valerie Geard Trust? ..........................................[57]

Costs .....................................................................................................................[87]

Introduction

[1]      The plaintiffs, in their capacity as trustees of the Valerie Geard Waiheke Trust, apply for orders in reliance either on the court’s inherent jurisdiction or under s 66 of the Trustee Act 1956 for:

(a)      A  determination  of  the  question  does  either  the  first  or  second defendant have an interest in the assets of the Valerie Geard Waiheke Trust such as to make it unlawful for the plaintiffs to determine the Valerie  Geard  Waiheke  Trust  and  distribute  to  ChildFund  New Zealand Ltd either by selling a property at 19 Causeway Road, Waiheke and paying all proper debts of the Trust and distributing the resulting cash surplus to ChildFund New Zealand Ltd as a beneficiary or in some other way?

(b)If the determination of the question is answered in the negative, that the court order, pursuant to s 143 of the Land Transfer Act 1952, that caveat 9612733.1 be removed from certificate of title NA18C/1222,

which is a property located at 19 Causeway Road, Waiheke Island;
and
[2]	(c) The	Costs. third defendant is a charitable trust.  It is a discretionary beneficiary of

the Valerie Geard Trust.  It is a beneficiary entitled to the trust fund of the Valerie Geard Waiheke Trust at the date of its distribution. It broadly supports the plaintiffs’ position and in particular the relief referred to.  In relation to the first relief sought by the plaintiffs, that is the determination of the question, counsel seeks an order that the plaintiffs, in their capacity as trustees, are authorised at a time of their choice to:

(a)       Sell the Waiheke property;

(b)Distribute the net proceeds of sale after paying outstanding debts to the third defendant; and

(c)       Wind up the Valerie Geard Trust.

[3]      The…