Jones v Collings - [2015] NZHC 3002

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-003253 [2015] NZHC 3002

IN THE MATTER of Section 64A of the Trustee Act 1956

AND IN THE MATTER

of Section 7 of the Perpetuities Act 1964

AND IN THE MATTER

of the grandchildren of GEORGE WINSTONE TRUST

BETWEEN

CLAIR BERYL MACPHERSON JONES, ROBERT ARTHUR WINSTONE AND GEORGE ANTHONY WINSTONE AS TRUSTEES

Plaintiffs

AND

MARGARET ELIZABETH COLLINGS, PAULINE MARY HOOK,

JENNIFER RUTH HOOK, NICHOLAS BRIAN HOOK,

HENRY MACDONALD WINSTONE, ALEXANDER GEORGE WINSTONE, PHILIPPA NATALIE HOOD, KATHERINE ROSE SOLOMON, CLAIR ELIZABETH SOLOMON, ALISON CLARE WARREN,

ROBERT IAN WARREN,

cont … /2

Hearing: 6 August 2015 (memorandum, 24 August 2015)

Appearances:

P D McKenzie QC for Plaintiffs
No appearance for or on behalf of Defendants
N Evans for Minor and Unborn Beneficiaries

Judgment:

30 November 2015

JUDGMENT OF HINTON J

This judgment is delivered by me on 30 November 2015 at 5 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

JONES & ORS AS TRUSTEES v COLLINGS & ORS, [2015] NZHC 3002 [30 November 2015]

ROBYN MARY WINSTONE, GEOFFREY MILTON BARBER, ROWAN JANE BARBER,
PAUL WINSTONE BARBER, JOHN CHANDLER WINSTONE, ANNEMARIE HELEN WINSTONE, CATHERINE JEAN TRENEMAN, REBECCA JANE WINSTONE,
MAX COLIN FARQUHARSON, RAYWIN MARY RAU (previously RAEWYN MARY VOYCE), VANESSA JANE VOYCE, GARETH REX DYSON,
MARION PHYLLIS O’KANE TRACY JENNIFER DYSON, JANDENE SUE DYSON,
CLAIR BERYL MACPHERSON JONES, RORY MACPHERSON JONES,
ANGUS MACPHERSON JONES, PETER ROSS WINSTONE, DAVID PETER WINSTONE, GRETA FELICITY MASLIN, JOHN VIVIAN WINSTONE,
PENELOPE JEAN EATON, HANNAH ROSE CAUNES (nee EATON),
JAIMEE HOPE HART, JESSICA KATE DRAPER, REBEKAH PENELOPE EATON, ANGELA HOPE WINSTONE, KEITH WARREN WINSTONE, SALLY ANNE MCDERMAID, ANDREA JEAN FOSTER, NAOMI BARBARA ARNET,
WARREN SCOTT WINSTONE, BRENT MARTIN V WINSTONE, DANIEL TIMOTHY WINSTONE, ROBERT ARTHUR WINSTONE, JULIA HOPE BUUTVELD, ANDREW ROBERT WINSTONE, GEORGE ANTHONY WINSTONE, MARK RICHARDSON WINSTONE, SONYA JOANNE DOUDS, MATTHEW PAUL WINSTONE, LAUREN MAREE WINSTONE, RUEBEN SEBASTIAN MICHELL
WINSTONE,
IAN RAY CARR, ROBERT JAMES CARR, HILDA ELIZABETH CARR,

JENNIFER KATHERINE CARR, BRYAN JOSEPH CARR, LESTER FRANK CARR
as beneficiaries
Defendants

Introduction

[1] This case is all about the Grandchildren of George Winstone Trust. It was settled in 1948 with the princely sum of £3,000. At the date of the hearing, the trust fund was $1,916,283. All relevant parties want to bring forward the vesting of a substantial part of the Trust. The Court’s consent is needed on behalf of two minor children and any future unborn descendants of George Winstone’s grandchildren.

Procedural background

[2] The proceeding by statement of claim is under s 64A of the Trustee Act 1956 and is brought pursuant to Part 18 of the High Court Rules.

[3] The proceeding is uncontested. It has been brought by the plaintiff trustees of the Trust at the unanimous request and consent of all sixty-one sui juris beneficiaries and with the consent and agreement of the trustees.

[4] Mr McKenzie QC on behalf of the trustees seeks this Court’s consent on behalf of two minor and any unborn…

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 Jones v Collings

Details

AGLC: Jones v Collings [2015] NZHC 3002
Case: [2015] NZHC 3002
Decision Date: 30 November 2015

CaseChat Overview and Summary

In the case of Jones v Collings, the High Court of New Zealand was asked to approve a variation to the Grandchildren of George Winstone Trust, which was established in 1948 by George Winstone. The trust fund has grown to nearly $2 million and is invested in liquid assets. The trustees, with the unanimous consent of all 61 sui juris beneficiaries, seek the Court's consent to a proposal to vest and terminate the trust for 44 adult beneficiaries, where the class of great grandchildren is closed, and for the trust to continue for the 17 beneficiaries where the class is still open.

The court found that the rule in Saunders v Vautier and the Trustee Act 1956 provided the authority to approve the variation on behalf of minor and any unborn beneficiaries. The court also considered the Perpetuities Act 1964, which provided presumptions and evidence as to future parenthood. The court concluded that the term "remoter issue" in the trust deed referred not only to the children of the grandchildren but also included further generations among the possible beneficiaries.

The court determined that the proposal would not be detrimental to the minor and unborn beneficiaries, as it would provide financial compensation to those who may be disadvantaged. The court ordered the trustees to obtain a life insurance policy that covers any potential loss to all unborn beneficiaries. The court also ordered that all health details are to be marked on the Court file as strictly confidential and that the cost of the proceeding is to be met from the trust fund.

Orders