Mason v Mason - [2020] NZHC 2503

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-774

CIV-2020-404-799 [2020] NZHC 2503

UNDER the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of Alexander Charles Mason

BETWEEN

WENDY ANNE MASON

Judgment creditor

AND

ALEXANDER CHARLES MASON

Judgment debtor

Hearing: 17 September 2020

Counsel:

T M Molloy for judgment creditor G J Thwaite for judgment debtor

Judgment:

24 September 2020

JUDGMENT OF KATZ J

This judgment was delivered by me on 24 September 2020 at 3:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Spencer Legal, Auckland
G J Thwaite, Abraham Lincoln Chambers Limited, Auckland Counsel: T M Molloy, Barrister, Auckland

MASON v MASON [2020] NZHC 2503 [24 September 2020]

Introduction

[1] In 2012, Alexander Mason’s wife, Wendy Mason, was diagnosed with dementia. Sadly, a family dispute arose over her care arrangements. This led to Mr Mason falling out with the couple’s two daughters, Vicki Triezenberg and Michelle Richardson.

[2] Following a family mediation in 2016, the Family Court appointed Michael Allen, an estate planner, to be Mrs Mason’s property manager and welfare guardian. The order was made by consent.

[3] In 2019, Mr Mason applied to have Mr Allen removed from his role. Mr Mason’s application was unsuccessful, and the Family Court awarded costs of
$55,025 against him.1

[4] Mr Mason then appealed to this Court. His substantive appeal was unsuccessful, although the Family Court’s costs award was reduced to $46,500.2 Costs of $13,220.10 were awarded against Mr Mason in respect of the appeal.

[5] Mr Mason has not paid either of the costs’ awards. As a result, bankruptcy notices were served on him on 4 June 2020, one in respect of each debt. Mr Mason now applies to have those notices set aside.

Further background

[6] A large proportion of Mr and Mrs Mason’s assets were settled into two trusts, the Mamari Trust (settled in 1994) and the Mamari (No 2) Trust (settled in 2013). Mr and Mrs Mason were trustees of both trusts until they were removed by this Court in 2019.3 Mrs Mason was removed on the ground of incapacity. Mr Mason was removed because Fitzgerald J found that his deep hostility to his co-trustees and two of the beneficiaries of the trust meant that he was no longer able to discharge his duties as a trustee in a fair and impartial manner. Her Honour found that Mr Mason’s

1      Mason v Mason [2019] NZFC 1021.
2      Mason v Mason [2019] NZHC 3092.
3      Triezenberg v Mason [2019] NZHC 14, (2019) 5 NZTR 29-001.

hostility had resulted in significant dysfunction in the operation of the trusts and an unsustainable dissipation of trust assets, including large sums of trust money spent on legal fees.4

[7] The remaining trustees of the trusts are Ms Triezenberg and Paul Dodd, who was the accountant for the Mason family and their associated interests for many years. Mr Mason requested that the trustees meet the costs…

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 Mason v Mason

Details

AGLC: Mason v Mason [2020] NZHC 2503
Case: [2020] NZHC 2503
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Wendy Anne Mason sought to enforce two judgments against her former husband, Alexander Charles Mason. Mr Mason had fallen out with his wife and their two daughters over his wife's care arrangements, leading to a family dispute and ultimately her bankruptcy. Mr Mason had been unsuccessful in his attempts to remove his wife's property manager and welfare guardian, and had been ordered to pay costs to the Family Court and the High Court. Bankruptcy notices were served on Mr Mason for the unpaid debts, and he now sought to have them set aside.

The court considered whether Mr Mason's proposals to compromise or secure the debts were sufficient to satisfy the requirements of the bankruptcy notices, and whether the notices themselves were defective. The court found that Mr Mason's proposals could not be approved by the court without the judgment creditor's acceptance, and that the bankruptcy notices were in the prescribed form and did not require any additional wording. The court dismissed Mr Mason's applications to set aside the bankruptcy notices and awarded costs to the judgment creditor.

The court's decision highlights the importance of creditors accepting compromise proposals in order for them to be approved by the court, and the need for bankruptcy notices to be in the prescribed form. The decision also emphasises the court's limited role in approving compromise proposals, and the need for such proposals to be made and approved in accordance with the relevant provisions of the Insolvency Act 2006.

Orders