Macnamara v Macnamara - [2021] NZHC 2361

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000404

[2021] NZHC 2361

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: 8 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:

10 September 2021

JUDGMENT OF VENNING J

This judgment was delivered by me on 10 September 2021 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

MACNAMARA v MACNAMARA [2021] NZHC 2361 [10 September 2021]

Introduction

[1] Court appointed independent trustees, William Paterson and Christopher Darlow, (the trustees) seek directions from the Court in relation to a claim that has been raised against the Macnamara Family Trust (Family Trust) by the trustees of the Graham & Julie Craig Family Trust (Craig Trust) for the repayment of a loan advance of $500,000 together with interest.

Background

[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 further directions and also an application by the trustees relating to the realisation of an asset of the Home Trust.

There were then further issues in relation to the sale of one of the Trust’s properties. Those issues required the…

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 2361
Case: [2021] NZHC 2361
Decision Date: 10 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Macnamara v Macnamara revolved around a dispute between Sheryl Ann Macnamara and Noel James Macnamara, who were trustees of the MacNamara Home Trust and the MacNamara Family Trust, respectively. The primary issue before the court was whether the trustees should repay a $500,000 loan advanced by the Craig Trust to the Family Trust, together with interest. The court had to determine whether it had jurisdiction to consider the application for directions and whether it had sufficient information to make a decision.

The court held that it had jurisdiction to consider the application, despite it being made informally, based on the reservation of leave in the consent orders made on August 27, 2020. The court also found that it had sufficient information to properly consider and determine the application for directions in relation to the Craig Trust debt. The evidence, including the Deed of Acknowledgement of Debt and other supporting documents, overwhelmingly supported the conclusion that the $500,000 was a loan, not a gift.

The court rejected the argument that the signature on the Acknowledgement of Debt may not be Noel James Macnamara's, as it was found to be lacking in credibility and inherently implausible. The court made the following directions: the trustees are to pay the Craig Trust the principal of $500,000 claimed, together with interest owing under the terms of the Acknowledgement of Debt. The issue of costs was reserved for later determination.

Orders