MacNamara v MacNamara - [2021] NZHC 2500

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000404

[2021] NZHC 2500

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: 22 September 2021 (by VMR)

Appearances:

L Kearns QC for S A Macnamara

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

Judgment:

24 September 2021

JUDGMENT OF VENNING J

Application for leave to appeal and stay

This judgment was delivered by me on 24 September 2021 at 12.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

MACNAMARA v MACNAMARA [2021] NZHC 2500 [24 September 2021]

Introduction

[1] In a judgment delivered on the 10 September 2021 the Court gave the trustees directions they had sought in relation to the payment of a debt owed by the Trusts.1 Mr Macnamara now seeks leave to appeal that judgment and a stay of the effect of the directions pending the hearing of the appeal. The trustees generally abide the decision of the Court on the applications but Mr Cundy addressed some brief submissions to assist the Court. Mrs Macnamara opposes the applications.

Background

[2]The background can be taken from the judgment:

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

[3] Following their separation Mr and Mrs Macnamara have been unable to agree what was to happen to Trust property. The Trusts were not able to be administered.

[4] Mrs Macnamara filed a claim (the 404 proceedings) in relation to the Home Trust seeking, amongst other things, the appointment of an independent trustee. In separate (the 646) proceedings, Mr Macnamara filed a similar claim in relation to both Trusts.

[5] Before the applications were heard the parties agreed to a number of consent orders including the retirement of the existing trustees and the appointment of Mr Patterson and Mr Darlow as independent trustees. The trustees were to realise the assets of the Trusts and resettle the net assets to new trusts for Mr and Mrs Macnamara. Orders to that effect together with a number of ancillary orders were made by consent on the 27 August 2020.

[6] Unfortunately, the appointment of the trustees has not resolved the ongoing conflict between Mr and Mrs Macnamara. In February 2021, Downs J was required to consider an application by Mr Macnamara for…

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 2500
Case: [2021] NZHC 2500
Decision Date: 24 September 2021

CaseChat Overview and Summary

Noel James MacNamara sought leave to appeal the Court's decision to grant directions to the trustees of the MacNamara Home Trust and the MacNamara Family Trust to repay a debt owed to the Craig Trust, and for a stay of the effect of those directions pending the hearing of the appeal. Sheryl Ann MacNamara opposed the applications. The central legal issues were whether leave was required to appeal the decision to grant directions to the trustees and whether a stay should be granted pending the appeal. The Court found that leave was not required to appeal the decision to grant directions to the trustees as the effect of the order was final. However, leave was required to appeal the decision to decline the application for an order for examination under r 9.34. The Court declined leave to appeal the latter decision because the applicant had not established a basis for the order. The Court also declined the stay application, finding it would not be in the interests of justice to allow further delay in the administration of the Trusts. The Court ordered that the trustees were released from any undertaking not to implement the orders of the Court and dismissed the application to defer fixing costs. Mr MacNamara was ordered to pay costs on both applications on a 2B basis to the trustees and Mrs MacNamara.

Orders