Neal v Neal - [2024] NZHC 2297

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1294

[2024] NZHC 2297

IN THE MATTER of declarations of resulting and constructive trusts

UNDER

Part 18 of the High Court Rules

BETWEEN

VANESSA ASHLEY NEAL

Applicant

AND

COLIN ASHLEY NEAL

First Respondent

COLIN ASHLEY NEAL and POLAR
CAPITAL TRUSTEES LIMITED as trustees of the COLIN NEAL FAMILY TRUST

Second Respondents

continued: …/2

Hearing:
7 March 2024 Further submissions:

28 March 2024 for the Respondent
11 April 2024 for the Applicant

Counsel:

J McCartney KC, J Cox and S Round for Applicant V Crawshaw KC and S Caradus for First Respondent

A S Ross KC and T Castle for Second and Third Respondents I Rosic and Z Brentnall for Fourth Respondent

Judgment:

15 August 2024

JUDGMENT OF HARVEY J

This judgment was delivered by me on 15 August 2024 at 4 pm pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

NEAL v NEAL [2024] NZHC 2297 [15 August 2024]

…/2

CIV-2021-404-1294

COLIN ASHLEY NEAL and POLAR CAPITAL TRUSTEESE (NO 2) LIMITED
as trustees of the GLANDOVEY TRUST Third Respondents

POLAR CAPITAL LP
Fourth Respondent

Introduction

[1] On 26 May 2023, I issued orders by consent settling these proceedings between Mr and Ms Neal.1 Ms Neal now claims that, firstly, the defendants have not furnished her with final accounts from the Colin Neal Family Trust (CNFT) in breach of cl 5.4 of the settlement agreement (the Agreement). Secondly, that those accounts incorrectly refer to the payments she received as “distributions” and not as payments of “relationship property”, contrary to cl 21.2 of the Agreement and cl 1(c) of a Trustee Resolution dated 1 May 2023.

[2]To remedy these claimed breaches, Ms Neal requires the Court to direct that:

(a)Colin Ashley Neal and Polar Capital Trustees Ltd and its directors, Colin Ashley Neal, Nichola Ann Burley and Hendricus Woudberg, provide her with final accounts for CNFT for the year ending 31 March 2023. Those accounts are to be signed by Colin Ashley Neal and the directors of Polar Capital Trustees Ltd and are to reflect the provisions of the Agreement and the signed Trustee Resolution of CNFT trustees dated 1 May 2023.

(b)The accounts must reflect that all property transfers and payments made to her under the Agreement, including [redacted], the mortgage repayment and all other payments including from the Deferred Amount,2 are distributions of relationship property, not trust distributions, and have been received by her absolutely.

(c)The property distributed to her under sch E to the Agreement is not recorded and represented in the financial accounts as an asset of CNFT.

(d)Any entry in her beneficiary account that represents property and payments made under the Agreement is removed and extinguished.

1 Neal v Neal [2023] NZHC 1280.
2 The deferred amount totals [redacted]. The Settlement Agreement records that [redacted]of the deferred amount is the separate property of Ms Neal.

(e)The beneficiary account ledger in her name that…

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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Details

Case: [2024] NZHC 2297
Decision Date: 15 August 2024

CaseChat Overview and Summary

The case of Neal v Neal involves proceedings brought by Vanessa Neal against Colin Neal, as well as Polar Capital Trustees Limited as trustees of the Colin Neal Family Trust, seeking enforcement of an agreement made between the parties in May 2023. Ms Neal claims that the defendants have not provided final accounts from the Colin Neal Family Trust in breach of clause 5.4 of the agreement. She further claims that the accounts incorrectly refer to the payments she received as "distributions" rather than "relationship property" payments, contrary to the terms of the agreement and a Trustee Resolution dated 1 May 2023. The primary issues before the court were whether the agreement provided for all transfers to be categorised as "relationship property" and whether the defendants were in breach of the agreement by providing only draft financial statements.

The court examined the relevant terms of the agreement and found that while the agreement intended to settle both trust and relationship property claims, it did not explicitly classify all distributions as "relationship property." The court also determined that the trustees were not in breach by providing draft financial statements, as the accounts were dependent on third parties and the trustees were making efforts to finalise them. The court directed the trustees to file a memorandum confirming the completion date for the final accounts within 10 working days and dismissed Ms Neal's application for further directions. Costs were to be addressed in memoranda to be filed by 30 August 2024.

Orders