Malcolm v John aka De Faria - [2022] NZHC 388

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2020-443-55

[2022] NZHC 388

UNDER the Trustee Act 1956

IN THE MATTER

of an application pursuant to section 51 of the Trustee Act 1956

BETWEEN

MAREE PATRICIA MALCOLM

Plaintiff

AND

CRAIG LESTER JOHN (also known as CRAIG DE FARIA)

Defendant

Hearing: On the papers

Appearances:

S W Hughes QC for the Plaintiff A F Johnston for the Defendant

C A Gelston for the Subject Person

Judgment:

8 March 2022

JUDGMENT (NO 2) OF COOKE J

[Final Orders]

[1] By judgment dated 10 December 2021 I addressed two applications: an application by the plaintiff under the Trustee Act 1956 for orders removing the defendant as trustee of their father’s estate, and secondly an application by the plaintiff under the Protection of Personal and Property Rights Act 1988 (the PPPR Act) seeking review of the defendant’s appointment as the attorney for their mother, with an independent person appointed in his place.1 The second application was transferred by the Family Court to this Court under s 14 of the Family Court Act 1980.

1 Malcolm v John [2021] NZHC 406.
MALCOLM v JOHN [2022] NZHC 388 [8 March 2022]

[2] In the interim judgment I reached a series of conclusions and made a series of initial orders. First I concluded that Mrs John had capacity to appoint the defendant and Mr Howard John as her attorneys/substitute attorney under the PPPR Act at the time of those appointments.2 Secondly I accepted that the defendant should be removed as Mr John’s attorney under s 105 of the PPPR Act, and as a trustee of the estate under s 51 of the Trustee Act 1956, as he had misconducted himself in his role as attorney and trustee.3

[3] I then indicated that I wished to hear further from the parties as to who should fulfil the replacement roles. When doing so I rejected Ms Hughes QC’s argument that I did not have jurisdiction to replace the plaintiff as well as the defendant as trustee of their father’s estate as the ultimate objective was to ensure that trusts were properly administered, and it was now appropriate to have a single independent trustee to fulfil this role given the history of family disagreement.4

The parties further submission

[4] I was hopeful that counsel for the parties might have been able to guide the agreed position on the remaining issues, but that has not proved to be the case. I will address each of the relevant roles in turn. In doing so I have regard to the PPPR Act objectives, the best interests of Mrs John, and the best interests of the beneficiaries of Mr John’s estate.

Property Manager and Trustee

[5] Counsel appointed for Mrs John, Ms Gelston has suggested that an accountant with whom she has previously worked, Mr Anthony Vincent be appointed property manager under s 31 of the PPPR Act and replacement trustee of Mr John’s…

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.

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Details

Case: [2022] NZHC 388
Decision Date: 8 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Malcolm v John, also known as Malcolm v De Faria, was heard on the papers. The plaintiff, Maree Patricia Malcolm, sought the removal of the defendant, Craig Lester John (also known as Craig De Faria), as the trustee of their father's estate and as the attorney for their mother, with an independent person appointed in his place. The defendant contested the plaintiff's application, and the subject person, Mrs John, was represented by counsel. The court had to decide on the appropriate individuals to replace the defendant in the roles of property manager, trustee, and welfare guardian, considering the best interests of Mrs John and the beneficiaries of Mr John's estate.

The court concluded that Mrs John had the capacity to appoint the defendant and Mr Howard John as her attorneys/substitute attorney under the Protection of Personal and Property Rights Act 1988 at the time of those appointments. The court accepted that the defendant should be removed as Mr John's attorney and as a trustee of the estate due to misconduct. The court then considered the parties' suggestions for replacements and ultimately appointed Mr Anthony Vincent as Mrs John's property manager and trustee, and Mr Michael Thorne as her welfare guardian, based on their independence, expertise, and familiarity with the family conflict.

The court rejected the defendant's argument that it did not have jurisdiction to replace the plaintiff as well as the defendant as trustee of their father's estate, stating that it was appropriate to have a single independent trustee to ensure proper administration of the trusts and to minimize family conflict. The court also clarified that it did not have jurisdiction to remove Mr Howard John as attorney but had jurisdiction to appoint a guardian for personal welfare under the Protection of Personal and Property Rights Act 1988.

In conclusion, the court appointed Mr Anthony Vincent as Mrs John's property manager and trustee, and Mr Michael Thorne as her welfare guardian, subject to a requirement to apply to the Family Court for a review of the appointments within three years of the date of this judgment. The court also appointed Mr Vincent as the replacement for the plaintiff and defendant as trustee of their father's estate. The court noted that these orders left some loose ends, but it was satisfied that the orders achieved what was necessary and were within the court's jurisdiction to deal with the current circumstances.

Orders