Merona Trustees Limited

[2021] NZHC 2095

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000345

[2021] NZHC 2095

UNDER

the Trusts Act 2019

IN THE MATTER

of an application for interpretation of a trust deed

BY

MERONA TRUSTEES LIMITED and

HAMISH PATRICK BENNETT as trustees of the M & R COOPER NO.2 TRUST

Hearing:	On the papers
Counsel:	A S Butler and K H Lawrence for Applicants
Judgment:	12 August 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 August 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE MERONA TRUSTEES LIMITED (M & R COOPER NO.2 TRUST) [2021] NZHC 2095 [12 August 2021]

[1]                 This proceeding is brought under s 133 of the Trusts Act 2019 and pt 18 of the High Court Rules 2016. An application for directions as to service has been made.1 The application is made without notice as is permitted by r 18.7(2) High Court Rules.

[2]                 The plaintiffs are the trustees of the M & R Cooper No. 2 Trust. The trust was established by deed dated 27 April 2002. The settlors of the trust were Mervyn Nathaniel Cooper (Mervyn) and Sylvia Rona Lorraine Cooper (Rona) who were married to each other.

[3]Rona died in 2013.

[4]Mervyn died in 2020.

[5]Clause 1 of the trust deed lists the beneficiaries of the trust as:

(i)the Settlors, the said Mervyn Nathaniel Cooper and Sylvia Rona Lorraine Cooper or either of them;

(ii)any of the children of the Settlors;

(iii)any child or children of whom either or both of the Settlors may have been appointed guardian;

(iv)any grandchild of the Settlors;

(v)any person whom any of the children or grandchildren of the Settlors marries but not if such person is separated from such child or grandchild nor if the marriage is dissolved.

[6]By deed dated 9 June 2016, further beneficiaries were appointed. These were:

(a)Mervyn’s then partner, Wendy Elizabeth Halliday (Wendy), as a life interest beneficiary only;

(b)Robert William Cooper (Robert);

(c)Robert’s children and grandchildren;

(d)Great-grandchildren of Mervyn;

1      Trusts Act 2019, s 133(2) and High Court Rules 2016, r 18.7(2).

(e)Various trusts defined by reference to the existing beneficiaries’; and

(f)Non-specific charitable and other benevolent organisations.

[7]                 An issue has arisen as to whether “any of the children of the Settlors”, for the definition of Discretionary Beneficiaries in cl 1(b)(ii) of the trust deed, means the children of both Mervyn and Rona, or the children of either Mervyn or Rona. The issue arises because while Mervyn and Rona had two children together, Rona had two children from a previous marriage.

[8]                 The children Mervyn and Rona had together are Lillian Jessica Cooper (Lillian) and Miffy Amanda Dasilva (Miffy).

[9]                 The children Rona had from her previous marriage are Robert and Raymond Alan Moody. Robert lived with and was raised by Mervyn and Rona for many years and has now died.

[10]              If Raymond falls within the definition of, “any of the children of the Settlors” in cl 1(b)(ii) of the trust deed, then he will be a beneficiary, along with a number of others defined by reference to him, including his children, his spouse, and spouses of his children.

[11]              Robert, his children and grandchildren are undoubtedly beneficiaries of the trust by virtue of the deed of variation of 9 June 2016. However, if Robert falls within the definition of “any of the children of the Settlors”, then he will have been a beneficiary of the trust under cl 1(b)(ii) of the trust deed, rather than solely under the deed of variation. In that case, Robert’s wife, and any spouses of Robert’s children will also be beneficiaries of the trust.

[12]              The beneficiaries and possible beneficiaries of the trust will be affected by the outcome of the application.

[13]Counsel submits the proceeding should be served upon:

(a)Lillian and Miffy;

(b)the children of Robert;

(c)Robert’s wife, Suzanne; and

(d)Raymond.

[14]              Counsel further submits that service of the proceeding should be dispensed with on:

(a)the children of Lillian, Miffy and Raymond; and

(b)Wendy.

[15]In my view the orders sought are appropriate because:

(a)the persons identified in [13](a),(b),(c) and (d) above are all undoubtedly beneficiaries affected by the application who should have notice of the proceeding and an opportunity to be heard;

(b)as far as the children of Lillian, Miffy and Raymond are concerned, their interests are likely to be aligned with those of their parents who may represent their interests in the proceeding; and

(c)as far as Wendy is concerned, she is a life interest beneficiary under the deed of variation only who may at the trustees’ discretion occupy a trust-residential property but is not entitled to benefit from trust capital. Wendy no longer resides in a trust property and her interests are unlikely to be affected by this application.

Result

[16]              There shall be orders in terms of paras 1(a) and (b) of the notice of application for directions as to service dated 6 August 2021.

[17]Costs are reserved.

O G Paulsen Associate Judge

Solicitors:
Greg Kelly Law Limited, Wellington