Keesing v Coop - [2022] NZHC 631

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2

[2022] NZHC 631

UNDER the Trusts Act 2019, Land Transfer Act 2017, inherent jurisdiction of the High Court, and all amendments thereto

IN THE MATTER

of FRANK POOL FAMILY TRUST, of

Wellsford, North Auckland

AND IN THE MATTER

of an application to prevent lapse of caveat on land title NA126C/45, legal description: fee simple – 1/3 share – Lot 12 – Deposited Plan 85113 – leasehold – flat 3 – deposited Plan 197086 (29B Wi Apo Place, Wellsford, North Auckland

BETWEEN

MICHAEL DOUGLAS KEESING as

protector and trustee of the FRANK POOL FAMILY TRUST

Plaintiff

AND

BARBARA ANNE COOP

First Defendant

Continued …

Hearing: 30 March 2022

Appearances:

Plaintiff in person

J Armstrong and J Daly for the Defendants

Judgment:

31 March 2022

JUDGMENT OF GAULT J

This judgment was delivered by me on 31 March 2022 at 9:00 am pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar

……………………………………

KEESING v COOP [2022] NZHC 631 [31 March 2022]

Continued …

AND
CRAIG PETER DAVIE-MARTIN

Second Defendant

PETER ATHOL HONOUR

Third Defendant

[1] Mr Keesing applies to sustain a caveat over a residential property in Wellsford (the property).1

[2]The three defendants are the registered proprietors of the property.

[3] Following an interim order, and the application was heard yesterday. There is urgency given a sale and purchase agreement relating to the property with settlement due today.

Factual background

[4] Mr Frank Pool and his late wife purchased the property in 2005. Following her death in 2008, Mr Pool became the sole registered proprietor.

[5]Mr Keesing was a cousin and friend of Mr Pool’s.

[6] On 5 June 2014 Mr Pool settled the Frank Pool Family Trust (the Trust). Mr Pool and the three defendants were the original trustees. Mr Pool and Ms Coop, the first defendant and a daughter of Mr Pool, were also primary beneficiaries.

[7] There is a factual dispute as to the correct version of the trust deed. Mr Keesing claims he has the correct original version, which names him as protector of the Trust. The defendants say they have the correct version, which names the four original trustees as protectors. Mr Keesing says this is a fraudulent document.

[8]In July 2014 Mr Pool transferred the property to the original trustees.

[9] In March 2021 Mr Pool moved from the property into a resthome. Ms Coop arranged for the property to be tenanted. The property was tenanted from May 2021 until September 2021.

[10] Mr Keesing says that he was concerned about Ms Coop’s conduct, and as protector removed her as a trustee on 11 June 2021. He says he also removed Mr Honour, the third defendant and Mr Pool’s son in law, as a trustee the same day.

1 NA126C/45.

[11]Mr Pool died on 29 June 2021.

[12] On 15 July 2021 Mr Keesing commenced a proceeding in this Court naming Mr Davie-Martin, the…

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 Keesing v Coop

Details

AGLC: Keesing v Coop [2022] NZHC 631
Case: [2022] NZHC 631
Decision Date: 31 March 2022

CaseChat Overview and Summary

The case of Keesing v Coop involves an application by Michael Douglas Keesing, as protector and trustee of the Frank Pool Family Trust, to sustain a caveat on a residential property in Wellsford, North Auckland. The registered proprietors of the property, Barbara Anne Coop, Craig Peter Davie-Martin, and Peter Athol Honour, seek to prevent the lapse of the caveat. The application was heard in the High Court of New Zealand at Auckland. The key legal issue is whether Mr Keesing's role as protector of the trust confers a caveatable interest in the property, thereby justifying the maintenance of the caveat.

The court examined the statutory provisions governing caveats, particularly Section 138 of the Land Transfer Act 2017, which sets out the grounds upon which a caveat can be lodged. The court noted that a caveat must be based on a legal or beneficial interest in the land, or on the transfer of the estate or interest in the land to another person to be held on trust. The trust deed, which defines the role of the protector, was scrutinized to determine if it granted a caveatable interest to the protector. The court found that the role of the protector does not confer a legal or beneficial interest in the trust property, nor does it fall under any other exception provided by statute.

In the exercise of its residual discretion, the court considered whether the caveat should be sustained or allowed to lapse. Despite Mr Keesing's concerns about the sale process and the potential undervaluation of the property, the court found that the absence of evidence substantiating these concerns, combined with the potential liabilities and risks to the beneficiaries if the sale were not to proceed, weighed in favor of allowing the sale to go ahead. The court was also mindful of the speculative nature of the defendants' arguments regarding the property market conditions. Ultimately, the court decided that even if Mr Keesing had a caveatable interest, his legitimate interests would not be prejudiced if the caveat were to lapse, provided the net proceeds of the sale were held on trust pending resolution of the substantive dispute.

The application to sustain the caveat was dismissed, and the interim order was discharged. The defendants were awarded costs, which are to be determined if not agreed upon by the parties. The court also directed the parties to propose timetable orders for the substantive proceeding within 15 working days.

Orders