Nyhoff v Atkins - [2021] NZHC 2238

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2020-416-12

[2021] NZHC 2238

UNDER the Trustee Act 1956

BETWEEN

MARK NYHOFF

Plaintiff

AND

KIRITEA ATKINS

Defendant

KIRITEA ATKINS AND MARK NYHOFF

as trustees of the Pakiri Family Trust

On the Papers

Counsel:

J D Allen for the Plaintiff

N A Farrands for the Defendant

Judgment:

27 August 2021

JUDGMENT OF GWYN J

[1] The plaintiff, Mr Mark Nyhoff, and the defendant, Ms Kiritea Atkins, are the trustees of the Pakiri Family Trust (the Family Trust).

[2] Mr Nyhoff seeks orders removing Ms Atkins as a trustee of the Family Trust, and appointing a trustee company in her place.

[3] Mr Nyhoff also seeks, in the alternative, review of Ms Atkins’ decision in relation to a property owned by the Family Trust, and the making of consequential orders.

NYHOFF v ATKINS [2021] NZHC 2238 [27 August 2021]

Background

[4] Mr Nyhoff and Ms Atkins were in a de facto relationship from 2008 to September 2018. During that relationship they settled the Family Trust. The only asset of the Family Trust is a property at 406 Matokitoki Valley Road, where the couple lived in the later stages of their relationship.

[5] After the breakdown of the parties’ relationship, relationship property proceedings were heard in the Family Court at Gisborne,1 and subsequently appealed by Mr Nyhoff to the High Court (the appeal).

[6] The parties arrived at a settlement of the appeal, which was recorded in a joint memorandum of counsel on 17 February 2021 and noted in a minute of Ellis J on the same date.

[7] One of the terms of that settlement was that Ms Atkins consented to being removed as a trustee and beneficiary of the Pakiri Business Trust.

[8] On 3 June 2021, Mr Nyhoff sought, in addition, the removal of Ms Atkins as a trustee of the Family Trust. Ms Atkins opposed the application, on the basis that she did not consent to that in the settlement of the appeal, although she had consented to being removed from the Pakiri Business Trust.

[9] By memorandum of 9 August 2021, counsel for Ms Atkins advised that, although she would prefer to remain as a trustee of the Family Trust, the costs of opposing the application precluded her from doing so and she would therefore consent to the orders sought.

[10] Accordingly, on 16 August 2021, Mallon J directed that the application be determined on the papers, on an undefended basis. Justice Mallon also directed that Mr Nyhoff was to file a memorandum of counsel setting out the facts and the law that support the orders sought by 23 August 2021.

1 Nyhoff v Atlkins [2020] NZFC 4180.

Originating application

[11] On the eve of the file being put before me, Mr Nyhoff filed an interlocutory application without notice to commence the proceeding by way of originating application. Although dated 20 August 2021, the originating application was received by the Court…

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 Nyhoff v Atkins

Details

AGLC: Nyhoff v Atkins [2021] NZHC 2238
Case: [2021] NZHC 2238
Decision Date: 27 August 2021

CaseChat Overview and Summary

Mark Nyhoff and Kiritea Atkins are trustees of the Pakiri Family Trust. Mr Nyhoff seeks orders to remove Ms Atkins as a trustee of the Family Trust and appoint a trustee company in her place. He also seeks, in the alternative, review of Ms Atkins’ decision in relation to the sale of a property owned by the Family Trust and the making of consequential orders. The primary legal issue for the Court to decide was whether it was appropriate to remove Ms Atkins as a trustee of the Family Trust. The Court found that it was necessary to do so in the interests of the beneficiaries of the trust and difficult or impracticable to do so without the assistance of the Court. The Court was satisfied that an impasse would occur if Ms Atkins remained a trustee of the Family Trust, and that addressing the Family Trust’s liabilities was a matter of some urgency. The Court made the following orders: (a) pursuant to s 112 of the Trusts Act 2019, it removed Kiritea Atkins as a trustee of the Pakiri Family Trust; and (b) pursuant to s 114 of the Trusts Act 2019, it appointed BGL Trustee 2012 Limited as a trustee of the Pakiri Family Trust.

Orders