Mitchell v Mitchell - [2020] NZHC 260

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-273

[2020] NZHC 260

UNDER
FLEUR NINA MITCHELL AND ALLAN BROOKE MITCHELL (JUNIOR) AS

TRUSTEES OF THE 899 TRUST
First Applicants

FLEUR NINA MITCHELL AND ALLAN BROOKE MITCHELL AS TRUSTEES OF THE A B MITCHELL NO 3 FAMILY

TRUST

Second Applicants

Hearing: On the papers

Counsel:

R Thompson for the Applicants

Judgment:

25 February 2020

JUDGMENT OF GORDON J

This judgment was delivered by me on 25 February 2020 at 3 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: David Hugh Rishworth, Auckland Counsel: R Thompson, Auckland

RE THE 899 TRUST AND THE A B MITCHELL NO 3 FAMILY TRUST [2020] NZHC 260 [25 February 2020]

[1] The applicants, Fleur Nina Mitchell and Allan Brooke Mitchell (Jnr) as trustees of the 899 Trust and the A B Mitchell No 3 Family Trust (the Remuera Trust), seek orders under the Trustee Act 1956 and the inherent jurisdiction of this Court vesting the realty assets of the two Trusts in them as continuing trustees.

[2] They also seek associated orders permitting commencement of this proceeding by way of originating application and dispensing with service of the proceeding.

Background

[3] Mrs Mitchell’s husband is Allan Mitchell. He has the same Christian and middle names as their son, who is one of the applicants. This judgment will therefore refer to Mrs Mitchell’s husband as Brooke (Snr) and her son as Brooke (Jnr).

[4] In her affidavit Mrs Mitchell deposes that Brooke (Snr) has severe and irreversible dementia. That statement is based on the clinical opinion of a neurologist whose evidence I refer to further below. Brooke (Snr) was a co-settlor with Mrs Mitchell and was a trustee since the settlement of both trusts up until his removal referred to below.

[5] Alan Graham Towers was the accountant for the Mitchell family and its businesses for many years. He was a co-trustee for both the 899 Trust and the Remuera Trust. Mr Towers died on 24 January 2019.

The 899 trust

[6] The 899 Trust was settled on 4 July 2005. By Deed of Retirement of Trustee and Appointment of New Trustee dated 13 August 2014, Kendall Wakeman Trustee Services Ltd retired as trustee and Alan Towers was appointed as trustee. It seems that change of trustee was not then recorded on the title for the property the 899 Trust owns at 899 Whangaparaoa Road.

[7] By resolutions and deeds executed in December 2019, Mrs Mitchell removed Brooke (Snr) as a trustee of the 899 Trust and appointed Brooke (Jnr) as a trustee of the 899 Trust.

The Remuera Trust

[8]The Remuera Trust was settled on 6 April 2000.

[9] By resolutions and deeds executed in January and February 2020, Mrs Mitchell removed Brooke (Snr) as a trustee of the Remuera Trust and appointed Brooke (Jnr) as a trustee of the Remuera Trust.

The Mitchells’ children

[10] Mrs Mitchell and Brooke…

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 Mitchell v Mitchell

Details

AGLC: Mitchell v Mitchell [2020] NZHC 260
Case: [2020] NZHC 260
Decision Date: 25 February 2020

CaseChat Overview and Summary

In the case of Mitchell v Mitchell, the applicants, Fleur Nina Mitchell and Allan Brooke Mitchell (Junior), as trustees of the 899 Trust and the A B Mitchell No 3 Family Trust, sought orders to vest the realty assets of the two trusts in them as continuing trustees. The applicants also sought associated orders permitting commencement of the proceeding by way of originating application and dispensing with service of the proceeding. The key legal issues before the court were whether permission should be granted to commence the proceedings by way of an originating application, whether orders dispensing with service of the proceedings should be granted, and whether the trust property should be vested in the applicants as the continuing trustees. The court found that the proceeding could be commenced by way of an originating application in the interests of justice, and that service on Brooke (Snr) and the beneficiaries should be dispensed with. The court was satisfied that vesting the trust property in the applicants as the continuing trustees gave effect to the removal of the previous trustees. The court ordered that the applicants could commence the proceeding by way of an originating application, that service of the proceedings on the beneficiaries of the trusts was not required, and that the interests of the trusts in various properties now vest in the applicants. Costs of and incidental to the application were to be met by the respective trust funds.

Orders