Imms v Gunson

[2006] NZSC 24

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IN THE SUPREME COURT OF NEW ZEALAND

SC 9/2006 [2006] NZSC 24

BETWEENJOCELYN MARY IMMS Applicant

ANDCRAIG WESLEY GUNSON AND JOCELYN MARY IMMS (AS TRUSTEES OF THE ESTATE OF VJERKOSLAV IVAN BANICEVICH) First Respondents

ANDCAMERON BANICEVICH AND DENE BANICEVICH

Second Respondents

ANDYVETTE BANICEVICH AND DONNA DOE

Third Respondents

Court:            Elias CJ, Blanchard and Anderson JJ Counsel: A G Stuart for Applicant

S P Bryers for First Respondents
M C Black for Second Respondents

Judgment:      4 April 2006

JUDGMENT OF THE COURT

A.       The application for leave to appeal is dismissed.

B.        Costs  to  the  second  respondents,  payable  by  the  applicant,  of

$2,500.

IMMS v GUNSON AND IMMS (AS TRUSTEES OF THE ESTATE OF V I BANICEVICH) And Ors

SC 9/2006 [4 April 2006]

REASONS

[1]      This is an application for leave to appeal from a judgment of the Court of Appeal.   This Court has considered the written submissions in support of and in opposition to this application and the submissions on behalf of the third respondents indicating that they abide this Court’s decision.

[2]      The  litigation  is  concerned  with  the  estate  of  the  late  Vjerkoslav  Ivan Banicevich who farmed land at Clarks Bay, Te Kopuru in Northland.  The applicant, a daughter of the deceased, sought a variation of the will trusts under s 64 of the Trustee Act 1956 with a view to seeing three sections subdivided off the family farm for the benefit of herself and her two sisters.  She also brought a Family Protection Act claim which failed in the High Court.  The Court of Appeal set aside directions which the High Court had made under s 64.

[3]      The Court of Appeal was of the opinion that the significant change to the will was more than mere management or administration, and that while it may well be in the best interests of the daughters it was arguably not in the best interests of the grandson beneficiaries.

[4]      The circumstances of this case are very unusual.  Their singularity leaves no room, in our opinion, for the applicant to contend that the appeal involves a matter of general or public importance or a matter of general commercial significance.  Nor are we persuaded that a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard.  The dismissal of the Family Protection Act claims undermines that ground.

[5]      The  conclusions  expressed  in  the  previous  paragraph  must  lead  to  the dismissal of this application.   As well, however, the applicant would have insurmountable  jurisdictional  hurdles.    Section  64(1)  allows  the  Court  to  make orders of the type mentioned herein only where such transaction is expedient in the management or administration of trust property or would be in the best interests of the persons beneficially interested under the trust.  The relevant property is not the farm itself but the A shares and one-third of the B shares in the family company

which holds title to the property.  The trustees’ obligations under the will are to sell those shares, either to the second respondents in terms of the option, or to other purchasers if the option is not taken up.   There is plainly ample power for the trustees to discharge that obligation without intervention by the Court.  And, as the Court of Appeal noted, such intervention must be for the purposes of management or administration of the shares or such as would be in the best interests of the beneficiaries.    It  would  be  difficult  indeed  for  the  applicant  to  show  relevant necessity or expediency to rewrite the will in the way suggested by the applicant.

Solicitors:

Webster Malcolm & Kilpatrick, Warkworth for Applicant

Pegg Ayton Gordon, Dargaville for First Respondents

Hammonds, Dargaville, for Second Respondents