Legal Research
Cases
Macnamara v Macnamara

Macnamara v Macnamara

Case [2023] NZHC 715 3 April 2023

No judgment structure available for this case.

Type to search within this case.

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000404

[2023] NZHC 715

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

Continued overleaf…

Hearing: 15 March 2023

Appearances:

L J Kearns KC for Ms Macnamara N J Macnamara in person

J P Cundy for the trustees of the Macnamara Home Trust and the Macnamara Family Trust

Judgment:

3 April 2023

JUDGMENT OF WYLIE J

(Application for directions)

This judgment was delivered by Justice Wylie
On 3 April 2023 at 2.00 pm Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:…………………………

MACNAMARA v MACNAMARA [2023] NZHC 715 [3 April 2023]

Continued from previous page

BETWEENSHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA AND GRAHAM
LINCOLN WILFRED CRAIG as trustees of the MACNAMARA HOME TRUST
Second Defendants

ANDSHERYL ANN MACNAMARA, NOEL JAMES MACNAMARA AND GRAHAM
LINCOLN WILFRED CRAIG as trustees of the MACNAMARA FAMILY TRUST
Third Defendants

Solicitors/counsel:
Shieff Angland Lawyers/L J Kearns KC/J S Langston, Auckland Claymore Partners Ltd/B O’Callahan, Auckland
J Cundy, Auckland

Introduction

[1] The applicants, Christopher Darlow and William Patterson (the trustees), are the trustees of the Macnamara Home Trust (the Home Trust) and the Macnamara Family Trust (the Family Trust—jointly the Trusts). They have applied to the Court for directions under s 133 of the Trusts Act 2019 (the Act).

[2] Mr Macnamara has filed a memorandum. He opposes the application in part. He has not filed a formal notice of opposition but no issue was taken with this.

[3] Ms Macnamara, through her counsel, Ms Kearns KC, actively supported the trustees’ application. She also sought to clarify some issues from her perspective.

Background

[4] The background to this matter was comprehensively set out in my judgment of 23 March 2022.1 It can be summarised relatively briefly for present purposes.

[5] Mr and Mrs Macnamara married in February 1991 and they separated in February 2019. During their marriage they acquired numerous assets. When they separated, most of their assets were owned by the then trustees of one or other of the Trusts that they had settled during their marriage. The then trustees of the Home Trust owned the family home at Karaka and a holiday home in Pauanui; the then trustees of the Family Trust owned 998 of 1,000 shares in a company known as Oneheat Ltd (Oneheat).

[6] Following their separation Mr and Ms Macnamara were unable to agree on what was to happen to the Trusts’ various assets. Their disagreements were such that the Trusts were not able to be properly administered. Both parties filed proceedings but before these could be heard, they agreed to the resignation of the then trustees of both Trusts, the appointment of…

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 [2023] NZHC 715
Case: [2023] NZHC 715
Decision Date: 3 April 2023

CaseChat Overview and Summary

The case of Macnamara v Macnamara involved a complex dispute between Mr. and Mrs. Macnamara regarding the administration of two trusts: the Macnamara Home Trust and the Macnamara Family Trust. The trustees of these trusts applied to the High Court of New Zealand for directions under the Trusts Act 2019 to resolve ongoing disagreements between the parties. Mr. Macnamara opposed the application in part but did not file a formal notice of opposition. Mrs. Macnamara supported the trustees' application and sought clarification on some issues. The court addressed several directions sought by the trustees, including the rental payable by Mr. Macnamara and Oneheat for the Karaka property, the reconciliation of Oneheat's accounts and Mr. Macnamara's liability to Oneheat, the costs of defending a defamation claim, the costs attributable to Mr. Macnamara, and the final distributions of the net assets of the Trusts. The court approved the trustees' determinations in most areas, emphasizing the trustees' proper consultation with the parties, adherence to the consent order, and reliance on expert advice. The court also declined to approve the distribution of funds to Mr. and Mrs. Macnamara's daughters or as Mr. Macnamara directs, due to potential conflicts with the trust deeds. Finally, the court granted leave for the trustees to apply for further directions and ordered that the trustees be indemnified for their reasonable costs and disbursements from the Trusts' assets.

Orders