Lieven v Grieve - [2024] NZHC 1560

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-757

[2024] NZHC 1560

IN THE MATTER OF the Trusts Act 2019

BETWEEN

TANYA MARIA LIEVEN

Plaintiff

AND

GRAEME STEPHEN GRIEVE

Defendant

On the Papers

Judgment:

14 June 2024

JUDGMENT OF GWYN J

Introduction

[1] The parties were in a long-term relationship which ended in 2021. During their relationship they owned several properties and had set up trusts for that purpose. After their separation, Court orders prevented Mr Grieve from entering the former family home.

[2] The dispute raised before this Court concerned two bare trusts. Ms Lieven alleged that Mr Grieve failed to maintain proper accounts in his role as trustee and committed a breach of trust by using trust funds for his own purposes and/or failing to account for trust funds. Mr Grieve brought a counterclaim against Ms Lieven that she had failed to apply rental income to property expenses, failed to account to Mr Grieve for his share, and instead used those funds for her own purposes.

[3] In his affidavit dated 10 February 2023, Mr Grieve said that all his financial records relating to the various transactions identified by Ms Lieven in her evidence

LIEVEN v GRIEVE [2024] NZHC 1560 [14 June 2024]

were held at the former family home, and that despite several requests, Ms Lieven had refused to provide access to the house or the records.

The Judgment

[4]On 3 May 2023, the High Court issued the Judgment which found:1

(a)The allegation that Mr Grieve failed to maintain proper accounts was not a cause of action pleaded in Ms Lieven’s statement of claim, and the Court declined to grant leave to amend the statement of claim given the potential prejudice to the defendant at this stage in the proceedings.2 In any event, there was no evidence to support the allegation that Mr Grieve failed to keep accounts — documents provided by the defendant demonstrated that some accounts were kept, and the plaintiff’s refusal to allow the defendant to access the family home prevented him from accessing materials which would enable him to explain the transactions in question.3

(b)In the absence of full evidence, which was at least in part caused by Ms Lieven’s actions,4 the Court was not satisfied that Mr Grieve had breached his duty, as trustee, to account for trust funds. The Court held that a further inquiry would be necessary for the Court to reach a conclusion on that claim.5

(c)A further inquiry would also be necessary for the Court to reach a conclusion on Mr Grieve’s counterclaim.6

[5] Both parties had sought an account and inquiry into the revenue and borrowings relating to the property held under the trusts and other property the parties have held, under pt 16 of the High Court Rules 2016 (Rules). The Court accepted that

1 Lieven v Grieve [2023] NZHC 1034 [Judgment].
2 At [43].
3 At [44].
4 At [45].
5 At [61].
6 At…

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 Lieven v Grieve

Details

AGLC: Lieven v Grieve [2024] NZHC 1560
Case: [2024] NZHC 1560
Decision Date: 14 June 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Lieven v Grieve involved Tanya Maria Lieven, the plaintiff, and Graeme Stephen Grieve, the defendant. The couple, who were in a long-term relationship, ended their partnership in 2021. During their relationship, they owned multiple properties and established trusts for these assets. Post-separation, court orders restricted Mr. Grieve from entering the former family home. The core of the dispute was centred around two bare trusts, with Ms. Lieven accusing Mr. Grieve of failing to maintain proper accounts as trustee and of using trust funds for personal purposes or failing to account for them. Mr. Grieve counterclaimed that Ms. Lieven did not apply rental income to property expenses, did not account for his share, and used those funds for her own purposes.

The court faced several legal issues, primarily concerning the adequacy of evidence to substantiate the allegations of breach of trust by Mr. Grieve and the counterclaim by Ms. Lieven. The court needed to determine if the allegations were sufficiently supported by evidence and if the parties had fulfilled the procedural requirements set by the Trusts Act 2019 and the High Court Rules 2016. Specifically, the court had to decide if Mr. Grieve's failure to maintain proper accounts was adequately pleaded and if the evidence provided was sufficient to prove a breach of trust. Additionally, the court had to assess the counterclaim regarding the application of rental income to property expenses and the evidence provided by both parties.

The court ruled that the plaintiff's allegation of Mr. Grieve failing to maintain proper accounts was not a cause of action pleaded in her statement of claim, and the court declined to grant leave to amend it. The court found that while some accounts were kept, the plaintiff's refusal to allow the defendant access to the family home and the necessary records hindered the ability to reconcile the transactions in question. Consequently, the court was not satisfied that Mr. Grieve breached his duty as trustee to account for trust funds. The court also determined that further inquiry was necessary for the court to reach a conclusion on the counterclaim. The court directed that Ms. Lieven provide Mr. Grieve access to the family home to retrieve documents and records, and both parties were required to provide a supported accounting within 60 days. Despite these directions, Mr. Grieve was unable to complete the reconciliation due to the removal of necessary documents by Ms. Lieven, leading the court to dismiss both the claim and counterclaim for insufficient evidence.

The court's final orders were to dismiss the claim and counterclaim due to insufficient evidence to reach a conclusion on the allegations of breach of trust and the counterclaim. The court noted that the necessary steps to complete the inquiry under part 16 of the High Court Rules had not been fulfilled, and as such, the proceedings were dismissed.

Orders