Kain v Public Trust - [2023] NZHC 2535

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-485-015

[2023] NZHC 2535

UNDER the Trusts Act 2019 and Part 19 of the High Court Rules 2016

IN THE MATTER

of the TE MATA PROPERTY TRUST

BETWEEN

GEORGINA KAIN, GEORGE CHARLES KAIN, GEORGE HARRY COUPER KAIN, GEORGE MICHAEL KAIN

Applicants

AND

PUBLIC TRUST as trustee of the TE MATA PROPERTY TRUST

First Respondent

MARY HUTTON

Second Respondent

Hearing: 11 July 2023

Appearances:

D R Bigio KC and S T Dymond for Applicants

A R Galbraith KC and G J D Mander for Second Respondent

Judgment:

11 September 2023

JUDGMENT OF MANDER J

[1] The applicants, Georgina, Charles, Harry and George Kain (the Kain siblings) have applied for an order directing the respondent, the Public Trust, as the trustee of the Te Mata Property Trust (the Trust), to disclose the “deed of advancement of distribution date” (the distribution deed) by which it brought forward the distribution date of the Trust and distributed its capital to the second respondent, Mary Hutton.

KAIN v PUBLIC TRUST [2023] NZHC 2535 [11 September 2023]

Background

[2] The Trust was settled in 1974 by Helen Couper. Its principal asset was a substantial rural property situated near Havelock North. Mrs Couper, together with her husband, Ernest, owned farmland in Hawkes Bay. Before their deaths they had acquired a significant number of assets that were inherited by or gifted to their two children, Janet Kain and William Alexander Xavier Couper (WAX Couper). The beneficiaries of the Trust were the children of Janet Kain, which included the Kain siblings and Mary Hutton, and those of WAX Couper (of which there were none).

[3] The Trust provided for a life interest in the income of the Trust and rights of occupation of the Trust property in favour of WAX Couper. It also bestowed on him a power of appointment of Trust capital. The Trust provided for a distribution date for the capital assets of the Trust of 21 December 2022. However, this was subject to the trustee(s) ability to advance the date of distribution. The power of appointment of capital was exercised by WAX Couper in April 2000 to appoint the capital of the Trust to Mrs Hutton.

[4] In July 2008, Public Trust, exercised its power to advance by deed the date of distribution. The Kain siblings were advised in September of that year by Public Trust that it had exercised its power to advance the distribution date and had executed a deed declaring the distribution date to now be 21 July 2008. The Public Trust gave the following reason for advancing the distribution date:

[to] guarantee that ownership of the Te Mata Property Trust would devolve to Mary as, in the absence of the trustee using its discretion to bring forward the date of distribution, she needed to survive WAX Couper. It was likely that Mary (aged 50 years) would survive WAX (aged 82 years) but not certain.

[5]WAX Couper…

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 Kain v Public Trust

Details

AGLC: Kain v Public Trust [2023] NZHC 2535
Case: [2023] NZHC 2535
Decision Date: 11 September 2023

CaseChat Overview and Summary

The Kain siblings sought an order directing the Public Trust, as trustee of the Te Mata Property Trust, to disclose the distribution deed which brought forward the distribution date of the Trust and distributed its capital to Mary Hutton. The siblings argued they had a right to view the deed as it had the apparent effect of terminating their interests in the Trust and was necessary to ensure the trustee had complied with its obligations. They further argued it constituted trust information to which they were entitled by operation of the Trusts Act 2019. The Court was required to decide whether the siblings had standing to seek disclosure of the distribution deed and, if so, whether the presumption in favour of disclosure should apply. The Court found the siblings had standing to seek disclosure of the distribution deed as former beneficiaries, despite the lapse of time and the appointment of capital to Mrs Hutton. However, the Court held that disclosure of the distribution deed was not reasonably necessary to enable the beneficiaries to enforce the Trust. The delay in seeking the information and the fact that any residual interest the siblings may have had had ceased significantly detracted from their application. The Court dismissed the application and awarded costs to Mrs Hutton and Public Trust.

Orders