Mason v Triezenberg - [2022] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA91/2019
[2022] NZCA 138

BETWEEN	ALEXANDER CHARLES MASON Appellant
AND	VICKI ANN TRIEZENBERG and PAUL MORLEY DODD AS TRUSTEES OF THE MAMARI TRUST AND MAMARI (NO 2) TRUST Respondents

CA244/2019
BETWEEN	ALEXANDER CHARLES MASON Appellant
AND	VICKI ANN TRIEZENBERG and PAUL MORLEY DODD AS TRUSTEES OF THE MAMARI TRUST AND MAMARI (NO 2) TRUST Respondents

Hearing:	1 November 2021 (further submissions received 31 March 2022)
Court:	Clifford, Mallon and Moore JJ
Counsel:	G J Thwaite for Appellant V T M Bruton QC for Respondents
Judgment:	27 April 2022 at 10.30 am

JUDGMENT OF THE COURT

AThe appeals are dismissed.
BThe parties are entitled to an indemnity for their reasonable costs on these appeals from Mamari 2.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

These appeals concern Mr Alexander Mason’s removal as a trustee of two trusts, the Mamari Trust (Mamari 1) and the Mamari (No 2) Trust (Mamari 2) that he and his wife, Mrs Wendy Mason, settled. The High Court ordered his removal on the application of his co‑trustees — his daughter, Ms Vicki Triezenberg, and Mr Paul Dodd, the family’s long‑time accountant.[1]
[1]Triezenberg v Mason [2019] NZHC 14 [Substantive judgment].
A dysfunctional relationship had developed between Mr Mason on the one hand and his co-trustees on the other following decisions about Mrs Mason’s care when she developed advanced Alzheimer’s Dementia. It was this dysfunction that led to the removal application.

In CA91/2019, Mr Mason appeals the High Court decision to remove him. He contends that:
(a)his deed removing Ms Triezenberg and Mr Dodd from both trusts and appointing his son, Mark Mason, was valid;
(b)the Judge should not have intervened in Mamari 1 at all because the matters in respect of that trust were settled and there was an arbitration process that could be utilised if future disputes arose;
(c)he should not have been removed from either trust because his actions in relation to Mrs Mason’s care were vindicated; and
(d)Ms Triezenberg and Mr Dodd should have been removed from both trusts because they were hostile to him.
In CA244/2019, Mr Mason appeals the High Court’s subsequent decision (i) to vary the trust deeds so the powers of appointment and removal of trustees vested in the continuing trustees; and (ii) to order Mr Mason to pay 2B costs to the respondents and to indemnify them out of the assets of Mamari 2 for the shortfall between that costs award and their actual costs.[2]
[2]Triezenberg v Mason [2019] NZHC 920 [Variation and costs judgment]. As we explain below at [84], originally the respondents had brought the appeal in CA244/2019 and Mr Mason had cross-appealed. The respondents then abandoned that appeal, but Mr Mason’s cross-appeal remained live.
The proceeding is determined under the Trustee Act 1956 because the proceeding was on foot before the Trusts Act 2019 came into effect.[3]

Factual background

[3]Trusts Act 2019, sch 1, pt 1, cl 8.

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 Triezenberg

Details

AGLC: Mason v Triezenberg [2022] NZCA 138
Case: [2022] NZCA 138
Decision Date: 27 April 2022

CaseChat Overview and Summary

In Mason v Triezenberg, Alexander Mason appealed against his removal as a trustee of the Mamari Trust and the Mamari (No 2) Trust. Vicki Triezenberg and Paul Morley Dodd as trustees of the Mamari Trust and the Mamari (No 2) Trust were the respondents. The Court of Appeal dismissed Mr Mason's appeal and found that he was not entitled to an indemnity for his costs. The Court found that the Judge's decision to remove Mr Mason as a trustee was justified due to his hostility towards his co-trustees and beneficiaries, and his inability to fairly consider the beneficiaries' interests. The Court also found that the Judge's decision not to remove Ms Triezenberg and Mr Dodd as trustees was not wrong, as they had been handpicked by Mr and Mrs Mason to be trustees and had worked conscientiously to carry out their roles. The Court agreed with the High Court that both the respondents and Mr Mason were each entitled to an indemnity for their reasonable costs in the High Court from Mamari 2. The same reasoning applied to the costs on these appeals, and there was no need to make an order for party/party costs on these appeals.

Orders