Kominik Family Trust - [2024] NZHC 1028

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-189

[2024] NZHC 1028

IN THE MATTER of the KOMINIK FAMILY TRUST

UNDER

Part 19 of the High Court Rules 2016

AND UNDER

the Trusts Act 2019 and under the inherent jurisdiction of the High Court to supervise the administration of trusts

ANNA HELEN KOMINIK, JANE KOMINIK AND DAVID RICHARD CUNLIFFE

Applicants

Teleconference: 30 April 2024

Counsel:

G F Kelly for Applicants

Judgment:

30 April 2024

JUDGMENT OF McHERRON J

[1] The applicants are the trustees of the Kominik Family Trust (the Trust). They apply:

(a)for permission to bring this proceeding as an originating application;

(b)for leave to apply on a without notice basis;

(c)for orders that certain items of trust property be vested in them as trustees, following the death of the Trust’s sole trustee and the appointment of the applicants as the new trustees in her will.

RE KOMINIK FAMILY TRUST [2024] NZHC 1028 [30 April 2024]

[2] I thank counsel for providing a comprehensive and thorough memorandum, with relevant documentation provided by way of affidavit.

Background

[3] The Trust was settled by Madeleine Anna Kominik (Madeleine) by deed dated 1 December 2010. The original trustees of the Trust were Madeleine and Advisory Trustees 010 Ltd, a solicitor’s trustee company.

[4] The beneficiaries of the Trust are named as Madeleine, her daughter Anna Kominik (Anna), and Anna’s children. Anna and her children are the final beneficiaries who will benefit on vesting day.

[5] The Trust deed was varied on 14 April 2021, to make it clear that Madeleine had the power to appoint new trustees and to remove existing trustees during her lifetime, to be exercised by her by deed or by will.

[6] The Trust deed was varied again on 21 November 2022 to provide, among other things, that one trustee could act as sole trustee of the Trust.

[7] The following day, Advisory Trustees 010 Ltd retired as trustee, by deed dated 22 November 2022. The effect of its retirement left Madeleine as the sole trustee until her death on 27 December 2023.

[8] Anna deposes that, as the estate is modest, a grant of probate in Madeleine’s estate is not required.1

[9] Madeleine’s final will dated 19 December 2023 appointed the applicants Anna, Madeleine’s sister Jane Kominik (Jane), and Anna’s partner David Cunliffe as trustees of the Trust. In the present application, they seek the Court’s assistance to transfer various Trust property into their names as trustees.

1 Administration Act 1969, s 65; Administration (Prescribed Amounts) Regulations 2009, reg 4.

Why is the Court’s involvement required?

[10] The reason why the Court’s involvement is considered necessary is explained in:

(a)Anna’s affidavit; and

(b)an affidavit from Carolynn McLaughlin, a legal executive employed by the applicants’ solicitors.

[11] The applicants submit that a Court order is the most practicable way of transferring the title to the Trust’s half share in a property in Hill Street, Wellington and its full…

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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Details

Case: [2024] NZHC 1028
Decision Date: 30 April 2024

CaseChat Overview and Summary

The case before the High Court of New Zealand involved the trustees of the Kominik Family Trust seeking permission to vest certain items of trust property in their names following the death of the original sole trustee, Madeleine Anna Kominik. The applicants, Anna Kominik, Jane Kominik, and David Richard Cunliffe, who were appointed as trustees in Madeleine's will, sought to avoid the process of transferring the trust property to Madeleine's executors before vesting it in the new trustees. The applicants argued that such a process would undermine the trust structure and potentially suggest that the properties were owned personally by Madeleine.

The legal issues the court had to address included whether the Court's inherent jurisdiction was necessary to vest trust property in the new trustees and whether sections 116 and 117 of the Trusts Act 2019 applied to the situation where a sole trustee died and appointed new trustees in her will. The applicants contended that there might be a gap in the legislation, necessitating Court intervention. They also sought permission to bring the proceeding as an originating application and to apply without notice.

In his judgment, Justice McHerron determined that sections 116 and 117 of the Trusts Act 2019 were applicable to the case, as they cover the divesting and vesting of trust property upon a change of trustees. The Court found that upon Madeleine's death and the execution of her will, the applicants were immediately appointed as trustees, and thus, there was no need for a transmission to her executors. The Court's order was necessary to ensure that the trust property was properly vested in the new trustees. The Court granted the application, declaring that the trust property had been divested from Madeleine and vested in the applicants as trustees and that the applicants were entitled to call for the transfer of trust property.

The final orders included declaring that the items of Trust property listed in Anna's affidavit had been divested from Madeleine and vested in the applicants as trustees, granting the applicants the right to call for the transfer of trust property, and ordering that the costs of the application be paid from the Trust. Leave to apply for the orders to be sealed was also granted to the applicants.

Orders