IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2014-409-884
[2019] NZHC 2983
BETWEEN
MARGARET PEARL McKENZIE
Plaintiff
AND
DEAN ALLAN McKENZIE as trustee of the ALISTER McKENZIE FAMILY TRUST
First Defendant
AND
BARRY DOUGLAS McKENZIE as trustee of the ALISTER McKENZIE FAMILY
TRUST Second Defendant
AND
MARGARET PEARL McKENZIE as
trustee of the ALISTER McKENZIE FAMILY TRUST
Third Defendant
Hearing:
11 November 2019 (Judicial Settlement Conference)
Counsel:
D J Pine for Plaintiff
A D Marsh for First and Second Defendants
M P McKenzie (self-represented Third Defendant) J Smith as Litigation Guardian for Julie McKenzie
Judgment:
18 November 2019
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 18 November 2019 at 10:00am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 18 November 2019
McKENZIE v McKENZIE [2019] NZHC 2983 [18 November 2019]
[1] This judgment follows the parties reaching a settlement at a judicial settlement conference chaired by me. The parties expressly consented to me including in this judgment matters that were referred to in the judicial settlement conference.
[2] The orders that are made are those recorded in a consent memorandum dated 11 November 2019 and I make orders in terms of paragraphs 1(a) to (j).
[3] In relation to order 1(e), that is the possible need for the parties to seek a vesting order, I record that such an order may be sought by way of memorandum with a request to the Registrar that the file and the memorandum be referred to me.
[4] This proceeding has been on foot for a long time. While the parties have come close to resolution in the past, unfortunately finality proved elusive.
[5] Margaret McKenzie is the mother of the first and second defendants, Dean Allan McKenzie and Barry Douglas McKenzie and also the mother of Julie Margaret Jane McKenzie. Julie has some intellectual impairment. While there was some disagreement between the parties as to the extent of Julie’s impairment, from the outset Barry, who attended the judicial settlement conference on behalf of both defendants, was adamant that he and his brother, Dean, saw Julie’s interests as being paramount. Not surprisingly, that represented Margaret’s view as well.
[6] Julie was a party directed to be served and for whom a litigation guardian was appointed. I infer that as the litigation guardian has taken no active steps that she too had confidence that the parties were focused on Julie’s interests.
[7] In all the circumstances, the settlement reached made practical and pragmatic sense. Despite the proceeding being underway for some time, it is still some way off being set down for a hearing. The reality is that if all matters in dispute were to go to a hearing, a hearing of three or four days would not be available until the end of 2020.
[8] The present reality is that the house owned by the Alister McKenzie Family Trust (“the Trust”) and occupied by Margaret and Julie,…
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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McKenzie v McKenzie [2019] NZHC 2983
Case
[2019] NZHC 2983
Decision Date
CaseChat Overview and Summary
In the case of McKenzie v McKenzie, the High Court of New Zealand was presented with a complex family trust dispute. The plaintiff, Margaret Pearl McKenzie, was the mother of Dean Allan McKenzie and Barry Douglas McKenzie, who were trustees of the Alister McKenzie Family Trust. The dispute arose over the management of the trust and the living arrangements for Margaret and her daughter, Julie, who has intellectual impairments. The case was settled during a judicial settlement conference, resulting in a consent memorandum detailing the terms of the agreement.
The legal issues before the court primarily revolved around the management and distribution of the trust assets, the suitability of the current living arrangements for Margaret and Julie, and the implications of the ongoing litigation on family relationships and costs. The court was tasked with approving the terms of the settlement and ensuring that the interests of Julie were given paramount consideration.
Associate Judge Lester reviewed the settlement agreement, which included the resignation of the original trustees, the resettlement of the trust onto a new trust with updated trustees, and the sale of the family home. The court was satisfied that the orders were appropriate and reflected the agreement reached by the parties. The settlement aimed to address the unsuitability of the current living arrangements, the financial viability of acquiring a licence to occupy, and the unsustainable costs of the litigation. The court approved the settlement, highlighting that it provided a practical and pragmatic resolution to the long-standing dispute.
The final orders included the resettlement of the trust, reimbursement of certain expenses, and the purchase of a suitable alternative property for Margaret and Julie. The court reserved leave to apply if issues arose and made no order as to costs, in accordance with the agreement between the parties.