Mackintosh v Thomas - [2018] NZHC 1372

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-409-000171

[2018] NZHC 1372

IN THE MATTER OF THE ESTATE OF NORMAN DEAN THOMAS

AND IN THE MATTER

OF AN APPLICATION FOR DIRECTIONS UNDER SS 64 AND 66 OF THE TRUSTEE ACT 1956

BETWEEN

JOHN BOWDEN MACKINTOSH AND MATTHEW CHADLOW HALL

Applicants

AND

PHILIP DEAN THOMAS, ALISON MARGARET SYME, MARK WREFORD REED, SIMON THOMAS REED AND

ELEANOR MARY MARR

Respondents

Hearing: 6 June 2018

Appearances:

C A McVeigh QC for Applicant trustees

H A Evans and C H Liu for Philip Thomas

RJB Fowler QC and S Valdez for Alison Syme JWA Johnson for Mark Reed and Simon Reed K W Clay for Eleanor Marr

Judgment:

11 June 2018

JUDGMENT OF GENDALL J

MACKINTOSH v THOMAS [2018] NZHC 1372 [11 June 2018]

Contents

Introduction and background................................................................................ [1]
The first Court of Appeal judgment (the CA Judgment No. 1)............................ [10]
The second Court of Appeal judgment (the CA Judgment No. 2)....................... [14]
The Mediation Heads of Agreement (HOA)....................................................... [16]
A.Application by Philip................................................................................ [27]
B.Application by Alison............................................................................... [41]
C.Application by Eleanor............................................................................. [53]

Result................................................................................................................... [61]
Alternative directions.......................................................................................... [63]
Costs.................................................................................................................... [64]

Introduction and background

[1]Norman Dean Thomas (the Deceased) died in 2012.

[2] The Deceased’s estate is a substantial one. It comprises interests in 11 Canterbury farm properties and involves other farm and general assets. As I understand it, the estate has a value of about $22 million.

[3] Under his Will the Deceased left all his estate, including the interests he had in the farm properties, to his daughters, the second-named respondent, Alison Syme (Alison) and the fifth-named respondent, Eleanor Marr (Eleanor). Eleanor, Alison and one of Alison’s sons, the fourth-named respondent, Simon Reed (Simon) were appointed executors and trustees under the Will.

[4] Eleanor, Alison and Simon were removed as executors and trustees by a consent order and replaced by professional trustees, the applicants John Bowden Mackintosh (Mr Mackintosh) and Matthew Chadlow Hall (Mr Hall) (together the trustees).

[5] The Deceased’s son, the first-named respondent, Philip Thomas (Philip) was not a beneficiary in his father’s will. Philip, however, had farmed several of the farm properties for many years in partnership with his father. Unfortunately, this partnership arrangement suffered a breakdown and, following this, Philip lodged caveats over his father’s one half share of the partnership farms. The other one half share is owned by Philip. Philip claimed an entitlement to his father’s share in those farms, either by virtue of the partnership agreement or by way of a constructive trust.

[6] When the Deceased died in 2012, Philip’s claims remained unresolved. Following the Deceased’s death, two of his grandchildren, Simon and his brother Mark Reed (Mark) and other relations of the deceased, brought statutory claims against the estate. Those claims, together with an earlier unresolved claim brought by the Deceased during his lifetime for division of the Partnership property with Philip, were then amalgamated with Philip’s claims into a single proceeding against and involving 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 Mackintosh v Thomas

Details

AGLC: Mackintosh v Thomas [2018] NZHC 1372
Case: [2018] NZHC 1372
Decision Date: 11 June 2018

CaseChat Overview and Summary

The High Court of New Zealand considered applications by Philip Thomas, Alison Syme, and Eleanor Marr, who were parties to a mediation heads of agreement (HOA) concerning the estate of Norman Dean Thomas. The HOA outlined the allocation of the estate's assets, including farm properties, among the parties and provided a mechanism for addressing any shortfall in the estate. The court had previously ordered that Philip, Alison, and Eleanor make certain payments to the estate's trustees to cover the shortfall. However, none of the parties had made the required payments, leading to the current applications.

Philip sought directions for the trustees to transfer specific properties to him to enable him to fund his contribution to the estate. Alison sought either a variation of the court's orders or the transfer of specific properties to her to enable her to raise the necessary funds. Eleanor sought a suspension of her liability to make further payments under the court's orders, arguing that her position had been affected by the failure of Philip and Alison to make their payments.

The court dismissed all three applications. Regarding Philip's application, the court found that the trustees had offered a satisfactory solution for him to obtain the necessary funding using the titles of the allocated properties as security, without transferring the properties outright to him. The court also found that Alison's application could not succeed as there was no evidence of significant changes in her financial position that would warrant a variation of the court's orders. Similarly, Eleanor's application failed as her position had not been established as affected by the other parties' failure to make their payments. The court noted, however, that all parties needed to make their required contributions to the estate to ensure its smooth administration. The court provided alternative directions to assist the parties in raising the necessary funds and reserved leave for further directions if required. Costs were reserved for later determination.

Orders