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IN THE SUPREME COURT OF NEW ZEALAND
SC 40/2007 [2008] NZSC 61
BETWEENGEORGINA KAIN, GEORGE HARRY COUPER KAIN, GEORGE CHARLES KAIN, GEORGE THOMAS CARLTON KAIN AND GEORGE MICHAEL KAIN
First Appellants
ANDGEORGE THOMAS CARLTON KAIN
Second Appellant
ANDJONATHON RHODES HUTTON
First Respondent
ANDWILLIAM ALEXANDER XAVIER COUPER
Second Respondent
ANDANNETTE ELIZABETH COUPER
Third Respondent
ANDWAYNE KEITH STARTUP
Fourth Respondent
ANDGEORGE THOMAS KAIN
Fifth Respondent
ANDMARY HUTTON
Sixth Respondent
Hearing:10 June 2008
Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:J S Kós QC, J V Ormsby and J W A Johnson for Appellants
M R Camp QC for Second Respondent R A Osborne for Third Respondent
Judgment:7 August 2008
JUDGMENT OF THE COURT
AThe appeal in relation to the shares in Ponui Station Ltd is dismissed.
BThe appeal in relation to the shares in Mangaheia Station Ltd is allowed and it is declared that those shares remain vested in the trustee or trustees for the time being of the Mangaheia Trust on the terms of the trust deed of 3 June 1981.
CThe appellants are awarded costs of $10,000 in this Court to be paid by the second and third respondents, together with the appellants’ reasonable disbursements, to be fixed if necessary by the Registrar.
REASONS
PARA NO
Elias CJ and Blanchard, McGrath and Anderson JJ [1] Tipping J [45]
ELIAS CJ, BLANCHARD, McGRATH AND ANDERSON JJ
(Given by Blanchard J)
[1] Members of the Couper family have been engaged in extensive litigation over certain transactions relating to a number of trusts which hold farming interests in Hawkes Bay. Both the High Court and the Court of Appeal have been called upon to rule on a large number of issues. Leave has been granted by this Court for a second appeal concerned with two matters only, namely the validity of actions of the trustees of the Mangaheia Trust on 19 July 1999 in:
(a)making an appointment to Mrs A E Couper of its holding of shares in Ponui Station Ltd; and
(b)resettling the balance of the assets of the Mangaheia Trust, consisting of the shareholding in Mangaheia Station Ltd upon trusts declared in the new Mangaheia Trust.
[2] The original Mangaheia Trust, which we will call the old Mangaheia Trust or the old trust, was established by a declaration of trust executed on 3 June 1981 by Mr W A X Couper who is largely the source of the family’s farming wealth. The asset in respect of which the trust was declared was Mr Couper’s shareholding in Mangaheia Station Ltd. In 1997 the trustees of the old trust acquired the shares in Ponui Station Ltd.
[3] When the old trust was established Mr Couper was unmarried. He had no children. In 1989, when he was in his early 60s, he married. Mrs Couper, who was in her mid 40s, already had four daughters. There have been no children of the marriage of Mr and Mrs Couper. They are now…
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.
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AGLC
Kain v Hutton [2008] NZSC 61
Case
[2008] NZSC 61
Decision Date
CaseChat Overview and Summary
In Kain v Hutton, the Supreme Court of New Zealand considered an appeal related to the validity of certain actions taken by the trustees of the old Mangaheia Trust on 19 July 1999. The actions in question were the appointment of Mrs Annette Couper with the shares in Ponui Station Ltd and the resettlement of the remaining assets of the Mangaheia Trust, consisting of the shareholding in Mangaheia Station Ltd, upon trusts declared in the new Mangaheia Trust. The children of Mrs Janet Richmond Kain, who were the appellants in the case, argued that these actions were invalid as they amounted to a fraud on the power of appointment and an unlawful advancement of capital. The Supreme Court held that the appeal in relation to the Ponui Station shares was dismissed, as there was no evidence to suggest that the trustees' actions were not genuinely intended to benefit Mrs Annette Couper. However, the appeal in relation to the Mangaheia Station shares was allowed, as the purported advancement of capital was invalid due to the lack of requisite interest in the capital of the fund and the absence of written consent from the Kain children. The shares in Mangaheia Station Ltd remained vested in the trustee or trustees for the time being of the old Mangaheia Trust on the terms of the trust deed of 3 June 1981. The appellants were awarded costs of $10,000 in this Court to be paid by the second and third respondents, together with the appellants' reasonable disbursements.