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…
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- Kain v Public Trust [2023] NZHC 2535
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