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Jacomb v Jacomb

Jacomb v Jacomb

Case [2020] NZHC 1764 21 July 2020

Jurisdiction

Discovery & Disclosure

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-503

[2020] NZHC 1764

UNDER the inherent jurisdiction of the High Court to supervise Trusts and Part 18 of the High Court Rules 2016

BETWEEN

VERONICA JACOMB

Plaintiff

AND

MICHAEL JOHN JACOMB

First Defendant

TRENA KATHLEEN JACOMB

Second Defendant

GENSET TRUSTEE LTD

Third Defendant

RLA TRUSTEE SERVICES NO 52 LTD

Fourth Defendant

Hearing: 2 and 3 June 2020

Appearances:

N A Farrands for the Plaintiff

N M Pender and A C Dartnall for the Defendants

Judgment:

21 July 2020

JUDGMENT OF COOKE J

Table of Contents

CLAIM FOR DISCLOSURE OF INFORMATION................................................................................. [5]

The Court’s approach...................................................................................................................................... [6]

Factors in favour of disclosure.................................................................................................................... [13]

Reasons why disclosure should not be ordered....................................................................................... [19]

Veronica’s drug use and criminal associations..................................................................................... [22]

Undermining the Trust................................................................................................................................ [32]

JACOMB v JACOMB [2020] NZHC 1764 [21 July 2020]

Impact on the family.................................................................................................................................... [46]

Conclusion on disclosure............................................................................................................................... [51]

PERSONAL LIABILITY.............................................................................................................................. [52]

Claim that Trust Deed not complied with................................................................................................. [53]

The interpretation of trust deeds............................................................................................................... [58]

The appropriate interpretation here........................................................................................................ [61]

Application for directions.......................................................................................................................... [69]

Claim that first to third defendants personally liable........................................................................... [78]

CONCLUSION................................................................................................................................................. [87]

[1] Ms Veronica Jacomb brings these proceedings in her capacity as a beneficiary of the Genset Trust (the Trust). The first and second defendants are her parents. They are two of the trustees of the Trust. It is a family trust settled by her father by trust deed dated 4 November 1993 (the Trust Deed).

[2] Ms Jacomb is estranged from her family. She left home when she was 16 years old, and turned to a life connected with drug use, and other offending. She is now 43 years of age. Her proceedings raise two matters. First she says that information concerning the Trust has not been provided to her, and that she seeks directions from the Court that certain information be so provided, namely:

(a)Financial statements for the Trust for the years 2013–2019.

(b)Resolutions of the trustees of the same period.

(c)Any memoranda of wishes by Mr Jacomb or the trustees.

(d)Any resolutions of the shareholders of the third named defendant relating to its decisions to act as a trustee of the Trust or to exercise or refrain from exercising any power or discretion conferred by the Trust Deed.

(e)Legal advice given to the defendants as trustees of the Trust, relating to:

(i)the third named defendant’s corporate structure and shareholding in as much as that structure or shareholding related to the Trust;

(ii)any resolutions of the shareholders of the third named defendant relating to its decisions to act as a trustee of the Trust and to exercise or refrain from exercising any power or discretion conferred by the Trust Deed.

[3] In her second claim Ms Jacomb contends that her parents have not properly administered the affairs of the Trust, and in particular the requirement in the Trust Deed that…

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 Jacomb v Jacomb

Details

AGLC: Jacomb v Jacomb [2020] NZHC 1764
Case: [2020] NZHC 1764
Decision Date: 21 July 2020

CaseChat Overview and Summary

In Jacomb v Jacomb, Veronica Jacomb sought disclosure of information concerning the administration of the Genset Trust, a family trust settled by her father. She also sought declarations that her parents, who were trustees of the Trust, had not properly administered the affairs of the Trust and were personally liable for their actions as trustees. The defendants resisted both claims.

In relation to the disclosure claim, the Court found that the documents sought were fundamental to understanding the administration of the Trust and Ms Jacomb had a legitimate interest in the Trust as a beneficiary. However, the Court found that disclosure should not be ordered due to Ms Jacomb's history of drug use and criminal associations, and her previous misuse of information she had obtained to undermine her parents in their capacity as trustees. The Court was concerned that any disclosure made would likely be used for improper reasons associated with these connections, and further disclosure would only fuel the acrimonious relationship between Ms Jacomb and her parents, which would be detrimental to the beneficiaries of the Trust more broadly.

In relation to the second claim, the Court found that for the period between 30 October 2014 and 22 June 2018, the Trust lacked an independent trustee as required by clause 15 of the Trust Deed. However, the Court did not have sufficient information before it to declare that all decisions and actions made by the trustees over that period were invalid. The Court also found that there was no information that would allow Ms Jacomb to successfully attain an order that her parents were personally liable for all decisions since 30 October 2014.

The Court dismissed both of the plaintiff's claims and the defendants were entitled to costs. The Court found that the plaintiff had failed in her claims and directed that if the question of costs could not be resolved, memoranda from counsel would be received.

Orders