Hofmann-Body v Carter

[2019] NZHC 2484

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-317

[2019] NZHC 2484

UNDER

section 66 of the Trustee Act 1956

IN THE MATTER

of the estate of JEANNE ISOBEL CARTER deceased

IN THE MATTER

of the J I CARTER FAMILY TRUST

BETWEEN

MICHAEL DAVID HOFMANN-BODY and DAVID WILLIAM BUTLER

First Applicants

AND

MICHAEL DAVID HOFMANN-BODY

Second Applicant

JOHN HOWARD CARTER
First Respondent

GILLIAN MARGARET REYNOLDS
Second Respondent

PETER ALAN CARTER
Third Respondent

TIMOTHY ROBERT CARTER
Fourth Respondent

CHRISTINA MARIE TUNNICLIFF

Fifth Respondent

On the papers:

Counsel:

R C Laurenson for Applicants

H McIntosh for Fourth Respondent

Judgment:

1 October 2019

JUDGMENT OF CHURCHMAN J

MICHAEL DAVID HOFMANN-BODY and DAVID WILLIAM BUTLER v MICHAEL DAVID HOFMANN- BODY [2019] NZHC 2484 [1 October 2019]

[1]                The applicants in this matter are the executors of the estate of Jeanne Isobel Carter (the deceased) and the remaining trustee  of  the  J  I  Carter  Family  Trust (the Trust). They are applying to distribute the deceased’s estate and the remaining funds of the Trust.

[2]                The fourth respondent, one of the beneficiaries of the estate and Trust, had made an interlocutory application for an order disclosing various Trust documents and to stay distribution of the estate and the remaining funds of the Trust pending completion of the discovery sought.

[3]                While that application was subsequently withdrawn, there was disagreement as to the applicants’ legal fees and costs, and it was proposed that the hearing time allocated for hearing the interlocutory application could be used for counsel to be heard on the remaining issue of costs.

[4]                However, the substantive proceeding has now settled and the interlocutory application has been withdrawn, with agreement reached on all matters, including costs. Counsel have filed a joint memorandum stating that they agree and, in accordance with that memorandum, I direct that the following orders are made by consent:

1.Pursuant to s 66 of the Trustee Act 1956:

(a)The items and possessions referred to in clause 3 of the last will of Jeanne Isobel  Carter (the deceased)  dated  2 July 2009 (defined therein as the Historical Articles) be distributed among the five respondents as the first applicants in their absolute discretion see fit; and

(b)The remaining corpus of the estate of the deceased, after the first applicants’ costs and expenses, be distributed in equal shares among the five respondents in accordance with the residuary trust in clause 6(b) of the last will of the deceased.

(c)Following the distributions in 1(a) and (b) above, the first applicants be discharged from all trusts under the last will of the deceased.

2.Pursuant to s 66 of the Trustee Act 1956:

(a)The remaining funds of the J I Carter Family Trust, after the second applicant’s costs and expenses, be distributed equally among the five respondents in accordance with clause 15.0 of the deed of the J I Carter Family Trust.

(b)Following the distribution in 2(a) above the trust be wound up and the second applicant and Paul William Moody be discharged from the trusts arising under the family trust.

3.That the applicants’ costs of and incidental to this application be paid from the estate of the deceased and the J I Carter Family Trust in equal shares.

[5]                While all parties involved were served with the originating application, and a photocopy of an affidavit of service has been filed, the original of the affidavit has yet to be provided and I direct that the above consent orders be made but lie in Court pending the filing of that affidavit of service.

[6]The hearing scheduled for 2 October 2019 is vacated.

Churchman J

Solicitors:

Gillespire Young Watson, Lower Hutt for Applicants Booth Law, Wellington for Fourth Respondent

cc:        H McIntosh, counsel for Fourth Respondent