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Lock v Weatherston

Lock v Weatherston

Case [2020] NZHC 2246 31 August 2020

Trustee Duties

Fiduciary Duty

Accounting by Trustees

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1186

[2020] NZHC 2246

BETWEEN CHRISTOPHER JAMES LOCK and JENNIFER ANNE COOKE
Plaintiffs

AND

MURRAY DAVID WEATHERSTON

Defendant

Hearing: 31 August 2020

Appearances:

James R Pullar and Miles Davis for the Plaintiffs Defendant is self-represented

Judgment:

31 August 2020

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Taylor Shaw, Christchurch, for the Plaintiffs

Copy for:
Murray David Weatherston

LOCK v WEATHERSTON [2020] NZHC 2246 [31 August 2020]

[1] This case concerns the estate of the late Michael John Lock, who died on 4 April 2016, and a trust he established on 10 March 1993. Mr Lock was a master mariner and accordingly I will call him Captain Lock. The plaintiffs are his only children. Mr Weatherston, a financial advisor, is the executor of Captain Lock’s estate and he is the sole trustee of the trust. The trust is a discretionary trust. The children are the final beneficiaries and they are included amongst the discretionary beneficiaries. The children are not, however, beneficiaries under their father’s will. Captain Lock left the residue of his estate to the trustees of his family trust. There was a bequest of his personal property to his wife, the plaintiffs’ mother, but she died before Captain Lock.

[2] The children say that Mr Weatherston has been slow in administering the estate and the trust, and he has failed to keep them fully informed. Their evidence shows that he has not always responded promptly to their requests for information and they say that the information provided was not as full as it should have been. In this proceeding, they seek orders for him to provide them with information about the trust and about the estate, and orders removing him as an executor and as a trustee. They propose that they be substituted as executors and trustees. They have applied for summary judgment.

[3] The principles on which summary judgment applications are decided are well- established. The Court of Appeal re-stated them in Krukziener v Hanover Finance Ltd:1
The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated: MacLean v Stewart (1997) 11 PRNZ 66 (CA). The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as, for example, where the evidence is inconsistent with undisputed

1 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26].

contemporary documents or…

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 Lock v Weatherston

Details

AGLC: Lock v Weatherston [2020] NZHC 2246
Case: [2020] NZHC 2246
Decision Date: 31 August 2020

CaseChat Overview and Summary

In Lock v Weatherston, the plaintiffs, Christopher and Jennifer Lock, sought orders for their father's executor and trustee, Mr Murray Weatherston, to provide them with information regarding the administration of their father's estate and trust. The children also sought Mr Weatherston's removal as executor and trustee. The High Court of New Zealand was required to decide whether Mr Weatherston had a valid defence to the claims and if summary judgment could be granted in favour of the plaintiffs. The court found that while the plaintiffs had provided sufficient evidence to show that there was no defence to their request for information, Mr Weatherston had raised arguable defences against the removal claims that prevented summary judgment from being granted. The court ordered Mr Weatherston to provide affidavits detailing his conduct as executor and trustee by 30 September 2020, and set a first case management conference to review the affidavits and determine any further directions. The court dismissed the summary judgment applications for Mr Weatherston's removal as executor and trustee but ordered him to provide detailed information about the administration of the estate and trust.

Orders