Law v Law - [2020] NZHC 1243

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV 2019-443-000048

[2020] NZHC 1243

IN THE MATTER of an application for directions pursuant to section 66 of the Trustee Act 1956

BETWEEN

ROBERT ALASTAIR LAW, ANDREW JONATHAN LAW and KAIETO TRUSTEE

COMPANY LIMITED as trustees of the KAIETO TRUST NO.1

Applicants

AND

ELENA IVANOVNA LAW

First Respondent

AND

ROBERT MARK LAW, PETER ANDREW LAW, DAVID ALISTAIR LAW, ANNA

REBECCA LAW and JULIA RUTH LAW as

children of the late JAMES DONALD LAW and residuary beneficiaries of the KAIETO TRUST NO 1

Second Respondents

Hearing: 4 May 2020

Appearances:

S W Hughes QC & R I Gordon for the Applicants K R Pascoe for the First & Second Respondents

Judgment:

5 June 2020

JUDGMENT OF GWYN J

This judgment was delivered by me on 5 June 2020 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

Solicitors/Counsel:
Susan Hughes QC, New Plymouth R I Gordon, Barrister, Stratford Nicolsons, New Plymouth

LAW v LAW [2020] NZHC 1243 [5 June 2020]

Introduction

[1] Robert Alastair Law, Andrew Jonathan Law and the Kaieto Trustee Co Ltd,1 as trustees of the Kaieto Trust No. 1 (the Trust), apply for directions under s 66 of the Trustee Act 1956. The Trustees seek direction on the proposed distribution of the Trust. The Trust was settled by James Donald Law (known as Tige) on 15 December 2003. The first and second named trustees are Tige’s brothers.

Background

[2]Tige Law was born on 2 July 1947. He married three times:

(a)To Rosemary Law on 23 January 1971. Tige and Rosemary had three sons: Robert Mark Law, born 7 December 1971 and Peter Andrew Law and David Allistair Law, both born 5 March 1973.

(b)To Nikki Norman on 25 July 1980. Tige and Nikki had two daughters, Anna Rebecca Law born 23 January 1983 and Julia Ruth Law, born 22 October 1984l.

(c)To Elena Ivanovna, on 10 May 1994. There were no children from Tige and Elena’s marriage.

[3] Elena was born in Moscow, Russia on 7 June 1953. Elena’s first marriage was in Russia. She has a daughter, Galia Anatoejevna Tikhonova, from that marriage. That marriage ended when Galia was about two years old.

[4] Elena came to New Zealand in December 1993, when Galia was 17. At that stage Galia remained in Russia with Elena’s parents. Elena’s only asset at that time was an apartment in Russia. The apartment was eventually sold in 2009 and Elena’s half share of the proceeds (the other half share was Galia’s) was $109,152.06, but this was not transferred from Russia to Elena’s New Zealand bank account until July 2015.

1 The Kaieto Trustee Co Ltd is the independent trustee of the Trust. Its directors are Barry King and Rod Gordon. Mr Gordon knew Tige Law for many years and acted as his solicitor from November 2002. He is a witness for the applicants in this application.

[5] Elena…

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 Law v Law

Details

AGLC: Law v Law [2020] NZHC 1243
Case: [2020] NZHC 1243
Decision Date: 5 June 2020

CaseChat Overview and Summary

This case concerns an application by trustees of the Kaieto Trust No. 1, Robert Alastair Law, Andrew Jonathan Law, and Kaieto Trustee Co Ltd, to the High Court for directions regarding the distribution of the trust funds. The trust was settled by the late James Donald Law, known as Tige, on 15 December 2003. The primary dispute is between the trustees, Elena Ivanovna Law, the widow of Tige, and Tige's children from previous marriages. The court was required to determine the proper interpretation of Tige's memoranda of wishes and the Trust Deed, and to decide on the appropriate distribution of the trust funds in line with Tige's wishes.

The court found that the trustees had not correctly interpreted Tige's memoranda of wishes, particularly regarding the weekly payments to Elena. The court held that the better interpretation allowed for the payments to come from both trust income and capital. The trustees' approach, which focused on preserving the trust capital and did not adequately provide for Elena, was inconsistent with Tige's wishes and the terms of the Trust Deed. The court also determined that the trustees' proposal to write off a debt owed by Elena was inappropriate, as it did not align with Tige's intentions for Elena's financial security.

The court concluded that Elena's proposal for distribution was fair and consistent with Tige's wishes. It directed the trustees to sell the current property and purchase a property in the Masonic Trust Village for Elena, with certain conditions regarding her occupancy and the Adult Children's financial responsibilities. The court also ordered a lump sum payment to Elena and directed that the remaining funds be distributed equally among the Adult Children after costs.

In summary, the court provided detailed directions for the distribution of the trust funds, ensuring that Tige's wishes were respected and that Elena was adequately provided for. The court also addressed the trustees' mismanagement and aimed to resolve tensions between the parties.

Orders