Nysse v Nysse - [2014] NZHC 2833

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1558 [2014] NZHC 2833

IN THE MATTER OF
The SG NYSSE No2 TRUST and the

TRUSTEE ACT 1956 and the inherent powers of the Court

BETWEEN

KIRSTY JANE NYSSE Plaintiff

AND

STEVEN GEORGE NYSSE also known as STEVEN NIJSSE

Defendant

Hearing: 13 November 2014

Counsel:

C R Pidgeon QC for the Plaintiff
Defendant in person

Judgment:

13 November 2014

JUDGMENT OF BROWN J

This judgment was delivered by me on 13 November 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: Pidgeon Law, Auckland Counsel: C R Pidgeon QC, Auckland Copy to: Defendant

NYSSE v NYSSE [2014] NZHC 2833 [13 November 2014]

[1] By Deed dated 6 June 2000 the defendant settled a trust called the SG Nysse No 2 Trust (“the Trust”). The Trust owns all 10,000 shares in Nyco Chocolates Ltd (“NCL”), a trading company, and all 220,000 shares in Nyco Holdings Limited (“NHL”) a property owning company which leases its Raumati premises to NCL. The defendant is the sole director of both NCL and NHL.

[2] The plaintiff and the defendant are co-trustees of the Trust. They were previously married but are now divorced and living apart. There is dissent and breakdown between them. The discretionary beneficiaries of the Trust include the plaintiff, the defendant, their daughter Elise and the plaintiff’s son from a previous relationship. The final beneficiaries are the plaintiff, Elise and the plaintiff ’s son.

[3] The defendant has the sole power under the Trust to appoint replacement or additional beneficiaries and to appoint or remove trustees. However, in response to an interlocutory application filed in June 2014, the defendant gave an undertaking to the Court dated 1 July 2014 that he would not exercise the power under the Trust to appoint a new trustee or trustees or change, remove or add to the beneficiaries except in accordance with any agreement with the plaintiff or until the order of the Court.

[4] In the present proceeding the plaintiff seeks an order for removal of the defendant as a trustee of the Trust and an order prohibiting the defendant from exercising his power to appoint a new trustee or trustees or to remove a trustee or trustees or change, remove or add to the beneficiaries.

[5] The defendant did not file a statement of defence. Consequently the matter was set down for hearing today for formal proof under r 15.9. The plaintiff had filed in advance written submissions, a chronology, a bundle of documents and a bundle of authorities.

[6] The defendant attended at court this morning. He was not represented. I explained to him the nature of the formal proof hearing and I arranged for the Registrar to provide to the defendant a copy of the plaintiff’s written submissions. At the conclusion of Mr Pidgeon QC’s submissions I afforded the defendant an opportunity to be heard.

The jurisdiction to remove trustees

[7] The dual source of the jurisdiction…

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 Nysse v Nysse

Details

AGLC: Nysse v Nysse [2014] NZHC 2833
Case: [2014] NZHC 2833
Decision Date: 13 November 2014

CaseChat Overview and Summary

The High Court of New Zealand was presented with a case involving a dispute over the management of the SG Nysse No2 Trust. The plaintiff, Kirsty Jane Nysse, sought the removal of the defendant, Steven George Nysse, as a trustee of the Trust, along with an order prohibiting him from exercising his power to appoint or remove trustees or change beneficiaries. The legal issues before the court were whether the defendant's conduct justified his removal as a trustee and whether the court should exercise its inherent jurisdiction to modify the trust deed to ensure the welfare of the beneficiaries. The court relied on evidence from affidavits and expert opinions, which demonstrated that the defendant had engaged in misconduct detrimental to the trust's interests, including diverting business and funds from the companies in which the trust held shares to other companies controlled by him.

The court found that the defendant's actions were detrimental to the trust and that his continued occupation of the office opposed the welfare of the beneficiaries. The court exercised its inherent jurisdiction to remove the defendant as a trustee and appointed Mark Daniel Backhaus as a replacement trustee. Furthermore, the court amended the trust deed to vest in the plaintiff and Mr Backhaus jointly the power to appoint and remove trustees and the power to add or remove beneficiaries. The defendant was ordered to pay costs on a 2B basis and was not entitled to an indemnity from the Trust in respect of the costs order. The court's decision was based on the need to protect the interests of the beneficiaries and ensure the proper administration of the trust.

Orders