Macnamara v Macnamara - [2021] NZHC 173

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000404

[2021] NZHC 173

BETWEEN
SHERYL ANN MACNAMARA

Plaintiff

AND

NOEL JAMES MACNAMARA

Defendant

CIV-2020-404-000646

BETWEEN

NOEL JAMES MACNAMARA
Plaintiff

AND

SHERYL ANN MACNAMARA

First Defendant

SHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA and GRAHAM

LINCOLN WILFRED CRAIG as trustees of the Macnamara Home Trust

Second Defendants

SHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA and GRAHAM

LINCOLN WILFRED CRAIG as trustees of the Macnamara Family Trust

Third Defendants

Hearing: 11 February 2021

Counsel

LJ Kearns for Plaintiff/First Defendant

B O’Callahan and JD Ryan for Defendant/Plaintiff JP Cundy for Independent Trustees

Judgment:

16 February 2021

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 16 February 2021 at 10 am pursuant to r 11.5 of the High Court

Rules................................................................. Registrar/Deputy Registrar

MACNAMARA v MACNAMARA [2021] NZHC 173 [16 February 2021]

Directions?

[1] I heard this case, at short notice, as Duty Judge. It concerns what directions, if any, should be made in relation to trusts under the management of independent trustees. Central is an order of the court made by consent.

[2] I am the third Judge to consider the case in as many months. Associate Judge Gardiner made directions 16 December 2020. Van Bohemen J essentially confirmed those 29 January this year. More about this later.

Background

[3] Noel and Sheryl Macnamara separated 14 February 2019. Most of their assets were (and remain) in two trusts, the Macnamara Home Trust1 and the Macnamara Family Trust.2 Both were trustees, as was Mrs Macnamara’s father. Mr and Mrs Macnamara were unable to agree what was to happen to trust property. These assets include what was the family home in Karaka, and 99.8% of the shares in Oneheat Ltd,3 a company specialising in heating—and the family business.

[4] Oneheat’s accounts need to be reconciled. This has not been an easy task; and one which remains ongoing. It is not clear how long reconciliation will take, beyond some weeks.

[5] On 4 March 2020, Mrs Macnamara filed a claim in relation to the Home Trust seeking, among other things, appointment of an independent trustee. Mrs Macnamara sought summary judgment.

[6] On 8 May 2020, Mr Macnamara filed a similar claim in relation to both trusts. He too sought summary judgment and the appointment of an independent trustee.

[7] The hearing of Mrs Macnamara’s summary judgment application was scheduled for 27 August 2020. Moore J was to be the Judge. On 26 August, hence a day beforehand, Mr and Mrs Macnamara’s lawyers signed a joint memorandum

1      Home Trust.
2      Family Trust.
3      Oneheat.

recording the parties’ agreement to orders. Moore J made the orders as agreed. The Judge vacated the hearing.

[8]Because the terms of the consent orders are important, I pause to record them:

COURT ORDER

Before the Honourable Justice Moore on 27 August 2020.

Upon reading the memorandum of consent orders filed on 26 August 2020. This Court ORDERS that:
1. That Ms…

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 Macnamara v Macnamara

Details

AGLC: Macnamara v Macnamara [2021] NZHC 173
Case: [2021] NZHC 173
Decision Date: 16 February 2021

CaseChat Overview and Summary

The High Court of New Zealand was called upon to decide directions in relation to two trusts, the Macnamara Home Trust and the Macnamara Family Trust, which were the subject of a dispute between the former spouses, Noel and Sheryl Ann Macnamara. The central issue was whether the independent trustees were required to complete the reconciliation of the financial accounts of Oneheat Limited, a family business, before proceeding with the sale of the Karaka property, which was owned by the trusts. Noel Macnamara sought a delay in the sale of the Karaka property until the reconciliation of Oneheat's accounts was completed, while the independent trustees sought directions to proceed with the marketing and sale of the property without delay.

The Court held that the reconciliation of Oneheat's accounts and the sale of the Karaka property were distinct processes, and that the consent orders did not require the former to be completed before the latter could proceed. The Court further held that the independent trustees were acting diligently and professionally, and that there was no basis for finding that they were acting in bad faith. Accordingly, the Court dismissed Noel Macnamara's application for directions and granted the independent trustees' application. The Court made directions that the sale of the Karaka property was not contingent on the completion of the reconciliation of Oneheat's accounts, and that the trustees were to proceed with the marketing and sale of the property forthwith. Noel Macnamara was also directed to provide all reasonable assistance to enable the Karaka property to be marketed and sold. Sheryl Ann Macnamara's application for an unless order was declined. The Court ordered that the claims be called again in the Duty Judge list to monitor progress.

Orders