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Mason v Triezenberg

Mason v Triezenberg

Case [2025] NZHC 584 20 March 2025

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-002788

[2025] NZHC 584

IN THE MATTER of the Mamari Trust and the Mamari (No.2) Trust

BETWEEN

ALEXANDER CHARLES MASON

Plaintiff

AND

VICKI ANN TRIEZENBERG

First Defendant

PAUL MORLEY DODD

Second Defendant

Hearing: 10 March 2025

Appearances:

G J Thwaite for the Plaintiff

J Cundy for the First and Second Defendants

Judgment:

20 March 2025

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 20 March 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

G J Thwaite, Auckland J Cundy, Auckland

V Bruton KC, Auckland

MASON v TRIEZENBERG [2025] NZHC 584 [20 March 2025]

Introduction

[1] This is an application for an order that Caveat 13168657.1 not lapse. The issue is whether the applicant has an equitable interest in two properties sufficient to maintain the caveat, or whether it should lapse.

[2]The caveat is registered over two properties. They are:

(a)a residential property at 2/12 Takutai Avenue, Pakuranga; and

(b)a commercial property at 125 Captain Springs Road, Onehunga.

[3] The Mamari Trust is the owner of both properties over which the caveat has been registered. The trustees of the Mamari Trust are the respondents.

[4] The applicant lives in the residential property. He has done so for many years, previously with his wife, who is now deceased.

[5] On 14 November 2024 the applicant lodged a caveat over both properties. The nature of the estate or interest claimed is described as:

A beneficial estate or interest as a beneficiary of an express trust in each title, pursuant to:

(a)a Deed of Trust dated 26 April 1997, under which [the applicant] is a beneficiary and [the respondents] are the trustees; and/or

(b)a Deed of Trust dated 30 May 2013, under which [the applicant] is a beneficiary and [the respondents] are the trustees;

each such Trust being recognised in the Judgment Triezenberg & Dodd v Mason [2019] NZHC 14.

[6] The respondents applied for the caveat to lapse. The applicant has applied for an order that the caveat not lapse.

[7]The applicant seeks to maintain the caveat on two grounds, being:

(a)Ground one—the applicant has an arguable claim to a beneficial estate or interest as a beneficiary of an express trust.

(b)Ground two—the respondents’ attempt to lapse the caveat is frivolous and an abuse of their duties as trustees.

[8] The notice of application includes a third ground, but that ground relates only to the respondents’ right to indemnification from the trust for costs. It is not relevant to the issue of whether a caveatable interest is demonstrated.

[9] This application is a further step in a long running dispute involving two trusts, the Mamari Trust and the Mamari (No.2) Trust. Litigation involving these two trusts and issues related to them has spanned several years. At its centre is the applicant’s desire to control the assets of the trusts.

[10]As Justice…

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 [2025] NZHC 584
Case: [2025] NZHC 584
Decision Date: 20 March 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Mason v Triezenberg was heard, involving an application for an order that Caveat 13168657.1 not lapse over two properties owned by the Mamari Trust. The applicant, Alexander Charles Mason, argued that he had an equitable interest in the properties as a beneficiary of an express trust, sufficient to maintain the caveat. The trustees, Vicki Ann Triezenberg and Paul Morley Dodd, opposed the application, asserting that the caveat should lapse as the applicant had no such equitable interest. The court had to decide whether the applicant had a sufficient equitable interest to justify maintaining the caveat, and if the trustees' opposition was an abuse of process.

The court found that the applicant, as a discretionary beneficiary of the trust, did not have a beneficial interest in the properties owned by the trust. This was based on established law and previous court decisions, which held that a discretionary beneficiary has no legal or equitable interest in the trust's assets. The applicant's arguments regarding the trustees' duties, the validity of the trusts, and the Memorandum of Guidance for Trustees did not provide a basis for a beneficial interest in the properties. The court also concluded that the applicant's new proceeding, which sought various orders regarding the trusts, did not establish a current equitable interest in the properties.

The court exercised its discretion to remove the caveat, noting that there were no overriding circumstances to maintain it. The trustees were awarded costs on a 2B scale basis. The court's judgment clarified that the applicant, as a discretionary beneficiary, had no current legal or equitable interest in the properties, and therefore the caveat could not be sustained.

Orders