Mackintosh v Thomas - [2016] NZHC 3141

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2016-409-171 [2016] NZHC 3141

IN THE MATTER
of the Estate of the late NORMAN DEAN

THOMAS (Deceased)

BETWEEN

JOHN BOWDEN MACKINTOSH AND MATTHEW CHADLOW HALL AS EXECUTORS AND TRUSTEES OF THE ESTATE OF NORMAL DEAN THOMAS Applicants

AND

PHILIP DEAN THOMAS, ALISON MARGARET SYME, MARK WREFORD REED AND SIMON THOMAS REED AND ELEANOR MARY MARR Respondents

Hearing: 19 December 2016

Counsel:

C A McVeigh QC and G Brodie for Applicants
H A Evans and D R Weatherley for Philip Thomas
S K Valdez for Alison Syme
J W A Johnson and H T Shaw for Mark and Simon Reed
K W Clay for Eleanor Marr

Judgment:

19 December 2016

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors:
Meares Williams, Christchurch
Wynn Williams, Christchurch Russell Moon & Fail, Christchurch Young Hunter, Christchurch Counsel:
C McVeigh QC, Christchurch
G M Brodie, Christchurch
K W Clay, Christchurch
R Fowler QC, Wellington

MACKINTOSH v THOMAS [2016] NZHC 3141 [19 December 2016]

Background

[1] The late Norman Dean Thomas died at the age of 86 years, owning or having interests in 11 separate farms in the vicinity of Christchurch. In addition to the farm properties, the late Mr Thomas had significant interests in livestock, plant and equipment and some investments and cash. Under his last Will, Ms Eleanor Marr, Ms Alison Syme and Mr Simon Reed were appointed as executors and trustees.

[2] On 1 October 2013, a Court order was made by consent removing those persons as executors and trustees and replacing them with two professional trustees, Mr Mackintosh, a solicitor from Christchurch, and Mr Hall, a chartered accountant from Ashburton. A series of orders were made by Associate Judge Osborne that protected both the former and new trustees by way of indemnity out of Trust assets.

[3] On 20 September 2015, a number of the family of the late Mr Thomas with claims against his estate attended a mediation before the Hon Robert Fisher QC. I am told that the trustees attended the first part of that mediation but by the time agreement had been reached as to the outcome they were no longer present.

[4] A document entitled “Mediation Heads of Agreement” was executed on 20

September 2015 by all of those present. It was intended that they apply to the Court to give effect to their agreement by varying the terms of the Trust created by the Will. That has not been done and difficulties have arisen in relation to the execution of the trust.

[5] Earlier this year, the trustees applied for various orders to put the estate in funds, in order that they might take steps to sell one of the properties to complete administration of the estate. That application came before me on 28 September
2016. Following discussions among counsel during the course of that day, an interim agreement was reached for a sum of $550,000 to be paid to the trustees on or before 21…

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 [2016] NZHC 3141
Case: [2016] NZHC 3141
Decision Date: 19 December 2016

CaseChat Overview and Summary

In the case of Mackintosh v Thomas, the High Court of New Zealand was tasked with resolving disputes surrounding the estate of the late Norman Dean Thomas. The late Mr. Thomas owned various farm properties, livestock, and investments, which were to be managed by executors and trustees appointed under his will. After a series of legal actions, professional trustees were appointed to manage the estate. However, disagreements among the beneficiaries and trustees arose, particularly regarding the sale of one of the properties, the Mays Block. This led to the current application by the trustees seeking directions to facilitate the sale of the property.

The primary legal issue before the court was whether it had the jurisdiction to direct one of the co-owners of the Mays Block, Mr. Philip Thomas, to withdraw his caveat and allow the sale to proceed. The trustees argued that the court had the authority under sections 64 and 66 of the Trustee Act 1956 to make such an order. They contended that the sale was necessary for the efficient administration of the estate. Conversely, Mr. Mark Reed and Mr. Simon Reed, representing some of the beneficiaries, disputed the court's jurisdiction, relying on a New South Wales Court of Appeal decision that limited the application of section 64.

The court ultimately decided to base its ruling on the jurisdiction provided by section 339 of the Property Law Act 2007, which allows the court to order the division of property between co-owners. The court found that it had the authority to order Mr. Thomas to purchase the one-half share held by the trustees for a fair and reasonable price. The court also determined that it should expedite the transfer of the trustees' half-share to the current trustees and set a deadline for the sale to be completed. Furthermore, the court scheduled a judicial settlement conference to encourage the parties to reach a comprehensive resolution of their disputes.

In summary, the court made an order requiring the original trustees to transfer their half-share in the Mays Block to the current trustees, mandated Mr. Thomas to purchase the trustees' half-share at a fair and reasonable price, and set a deadline for the sale to be completed. The court also scheduled a judicial settlement conference to address the outstanding issues and implement the Heads of Agreement reached in September 2015.

Orders