Macnamara v Macnamara - [2021] NZHC 3141

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000404

[2021] NZHC 3141

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: 29 October 2021 (by VMR)

Appearances:

L J Kearns QC for S A Macnamara

B O’Callahan and J D Ryan for N J Macnamara J Cundy for Trustees

Judgment:

19 November 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 19 November 2021 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

MACNAMARA v MACNAMARA [2021] NZHC 3141 [19 November 2021]

Introduction

[1] Sheryl Macnamara has applied for further directions and a variation of consent orders made by Moore J on 27 August 2020 (Consent Orders) regarding the resolution of issues concerning two trusts which are to be wound up and their assets distributed between Ms Macnamara and her former husband, Noel Macnamara.

[2] Mr Macnamara opposes the orders in the terms sought and proposes that there be a hearing to resolve the issues between the parties.

[3] The trustees of the trusts generally do not oppose the orders sought and have said they will abide the Court’s decision.

[4] At the hearing of Ms Macnamara’s application on 29 October 2021, it became apparent that all parties were willing to cooperate in finding a means of resolving the principal remaining issues in contention between Ms Macnamara and Mr Macnamara, despite their differences on those issues and on other issues concerning the implementation of the Consent Orders. As annexed to my minute issued following the hearing, I made timetable directions for that purpose by consent.1

[5] Notwithstanding those directions, Ms Kearns QC, counsel for Ms Macnamara, asked that I issue a judgment on Ms Macnamara’s application to this point.

Background

[6] The resolution of the issues between Ms Macnamara and Mr Macnamara has involved a considerable amount of Court time over the past 18 months. For convenience, I adopt the description of the background to these proceedings given by Venning J in a judgment issued on 10 September 2021:2
[2] Sheryl and Noel Macnamara separated in February 2019. Most of their assets were held in two trusts, the Macnamara Home Trust (Home Trust) and the Family Trust. In broad terms, the Home Trust held property and the Family Trust held 998 of the 1,000 shares in Oneheat Limited. Both Mr and

1 Macnamara v Macnamara HC Auckland CIV-2020-404-404, 29 October 2021 (Minute of van Bohemen J).
2 Macnamara v Macnamara [2021] NZHC 2361.

Mrs Macnamara were trustees of the Trusts as was Mrs Macnamara's father, Mr Craig.

[3] Following their separation Mr and Mrs Macnamara have…

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 3141
Case: [2021] NZHC 3141
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Sheryl Ann Macnamara applied for further directions and a variation of consent orders previously made by Moore J on 27 August 2020. The consent orders pertained to the resolution of issues concerning the winding up of two trusts, the Macnamara Home Trust and the Macnamara Family Trust, and the distribution of their assets between Ms Macnamara and her former husband, Noel James Macnamara. Mr Macnamara opposed the orders sought and proposed a hearing to resolve the issues between the parties. The trustees of the trusts generally did not oppose the orders sought and indicated they would abide by the court's decision.

The court was required to decide whether to vary the consent orders to allow the trustees to deduct certain costs from the assets to be distributed to Mr Macnamara's trust, due to his alleged unreasonable conduct. The court also had to consider whether to make orders regarding the rental to be paid by Mr Macnamara for occupation of the former family home and the money he owed to Oneheat Ltd, the company through which he operated his underfloor heating business. The court needed to weigh the principles of varying consent orders against the established conduct of the parties and the trustees' costs incurred in implementing the consent orders.

The court decided not to make any orders on Ms Macnamara's application and deferred decisions on the application until the trial to be held in accordance with the timetable directions. The court found that while there was evidence of Mr Macnamara's obstructive conduct, it was not an adequate or appropriate basis for making any decisions on varying the consent orders without considering the memorandum the trustees had undertaken to file and hearing submissions on the actions that should be taken as a consequence. The court reserved costs pending the result of the trial.

Orders