Jaspers v Greenwood - [2012] NZHC 2422

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-1772 [2012] NZHC 2422

UNDER The Trustee Act 1956

IN THE MATTER OF The Jaspers Family Trust

BETWEEN ALISTAIR CHARLES GEORGE JASPERS
Applicant

ANDJOHN PAUL GREENWOOD First Respondent

ANDMALCOLM FREDERICK THOMAS JASPERS
Second Respondent

Hearing: 13 September 2012

Counsel: R C Laurenson for Applicant
P S J Withnall for First Respondent
G L Turkington for Second Respondent

Judgment: 19 September 2012

JUDGMENT OF THE HON JUSTICE KÓS

[1] In the pleasant uplands north of the settlement of Martinborough are two farms, Tawaha and The Cutting. For the last 35 years or so they have been farmed by Mr Thomas Jaspers. In more recent years one of his sons, Mr Malcolm Jaspers, has farmed with him. The two farms have been run as a single block.

[2] The farms are owned by the Jaspers Family Trust. The beneficiaries of the trust are Mr Thomas Jaspers’ sons Malcolm (born 1970) and Alastair (born 1971).

JASPERS v GREENWOOD & JASPERS HC WN CIV 2012-485-1772 [19 September 2012]

Now Mr Thomas Jaspers has become infirm. He can no longer farm. Nor could he continue to act as a trustee.

A dispute

[3] Mr Thomas Jaspers and his fellow trustee, a Mr Bourke, applied to the Court under s 66 of the Trustee Act 1956 (the Act) for directions as to early distribution of the trust to Malcolm and Alastair. The then trustees could not agree amongst themselves as to how the property should be distributed. Nor could the two beneficiaries, the brothers, agree. Mr Thomas Jaspers, it seems, wished some sort of preference over both farms in favour of Malcolm. The other trustee, Mr Bourke, favoured a split with Tawaha (worth perhaps $5 million) going to Malcolm and The Cutting (worth perhaps $3 million) to Alastair. There was also disagreement as to what action should be taken to even out the distribution in favour of Alastair.

[4] Other related proceedings followed. There was an application to remove the trustees. An application by Malcolm to restrain Alastair’s access to the farm property. An application by Alastair regarding the farm partnership between the brothers. And an application by Alastair claiming that the s 66 application had triggered certain provisions of the trust deed.

A settlement

[5] A three day hearing was allocated, before Simon France J, starting on 23

April 2012. But the parties reached settlement on the second day.

[6] The settlement covered all proceedings. Consent orders were made by Simon

France J on 24 April 2012 in these terms:

By consent, and pursuant to s 66 of the Trustee Act 1956, I order:

1. The properties referred to in the above proceedings known as “Tawaha”
and “The Cutting” are to be sold forthwith.

2. John Greenwood, Solicitor, Wellington be appointed as Trustee of the Jaspers Family Trust, to replace the existing Trustees for the purposes of the sale and distribution of the Trust assets.

3. Following the sale of the Trust assets, the net…

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 Jaspers v Greenwood

Details

AGLC: Jaspers v Greenwood [2012] NZHC 2422
Case: [2012] NZHC 2422
Decision Date: 19 September 2012

CaseChat Overview and Summary

The case of Jaspers v Greenwood and Jaspers involved a dispute over the sale of two farms, Tawaha and The Cutting, owned by the Jaspers Family Trust. The beneficiaries of the trust, Malcolm and Alastair Jaspers, disagreed on the distribution of the farms and the method of sale. The case centered around an application by Alastair Jaspers under section 68 of the Trustee Act 1956, seeking a direction or review of the trustee's decision to sell the farms on the open market rather than offering them to the beneficiaries first. The High Court found that section 68 did not apply to the trustee's actions, as the power to sell derived from the consent orders rather than the Act. Even if section 68 did apply, the court held that Alastair Jaspers had not demonstrated that the trustee had acted unreasonably in rejecting his proposals for an off-market sale. The court dismissed Alastair Jaspers' application and ordered that the parties opposing the application were entitled to costs.

Orders