Oldfield v Oldfield - [2020] NZHC 1401

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2018-419-000261

[2020] NZHC 1401

UNDER the Property (Relationships) Act 1976 and the Family Proceedings Act s 182 and the Companies Act 1993

IN THE MATTER

of an application under Section 51 of the Trustee Act 1956

BETWEEN

DOROTHY ANN OLDFIELD

Plaintiff

AND

KENNETH DAVID OLDFIELD

First Defendant

THE NEW ZEALAND GUARDIAN

TRUST COMPANY LIMITED as trustee of THE DAVID OLDFIELD FAMILY TRUST

Second Defendant

DEMOLITION TRADERS LIMITED
Third Defendant

PERPETUAL TRUST LTD as trustee of
THE DAVID OLDFIELD FAMILY TRUST

Fourth Defendant

Hearing: 6 March, 2020, 17 March 2020, 21 April 2020

Appearances:

A Grant for Plaintiff

P Morgan QC and Z Mora for First Defendant V Bruton QC for Second Defendant

Judgment:

22 June 2020

JUDGMENT OF DUFFY J

This judgment is delivered by me on 22 June 2020 at 11:30am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

OLDFIELD v OLDFIELD [2020] NZHC 1401 [22 June 2020]

[1] The key issues for determination in the recent hearing before me in March 2020 are: (a) should an advisory trustee be appointed and if so who should that be;
(b) compensation for legal fees paid by Mr and Mrs Oldfield; (c) whether an equalisation of legal fee distributions should be made; (d) whether independence payments for Mr and Mrs Oldfield should be made.

[2] The trust deed requires modification; however, this is something that can be done as a final step in completing this proceeding.

Appointment of advisory trustee

[3] Mr Oldfield favours the appointment of an advisory trustee who is a professional person with no connections to the Oldfield family.

[4] Mrs Oldfield favours the appointment of an advisory trustee and for her son John Oldfield to assume this role.

[5] The appointment of an advisory trustee was recognised in principle in the judgment I delivered on 13 January 2020 (the January judgment).1 At the time of delivery Mr Oldfield was seeking such appointment. Mrs Oldfield did not oppose the idea and the Guardian Trust supported the idea.

[6] However, when the hearing before me resumed I learned that Perpetual Trust Limited (Perpetual) which has now assumed the role of sole trustee no longer supports the appointment of an advisory trustee.2 The change of stance has largely been brought about through concerns that the finances of the David Oldfield Family Trust (DOFT) would be unnecessarily reduced by the costs of an advisory trustee. Further, since the January judgment, which confirmed the appointment of Perpetual’s predecessor Guardian Trust as sole trustee of a single trust rather than the two mirror trusts sought by Mr Oldfield, the trustee (either in the form of Guardian Trust or Perpetual) has been

1 See Oldfield v Oldfield [2020] NZHC 8 at [63].
2 See Re The New Zealand Guardian Trust Company Limited [2019] NZHC 2548 in which Lang J made orders allowing for Perpetual to assume the trusteeship role of…

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 Oldfield v Oldfield

Details

AGLC: Oldfield v Oldfield [2020] NZHC 1401
Case: [2020] NZHC 1401
Decision Date: 22 June 2020

CaseChat Overview and Summary

In the recent hearing before the High Court of New Zealand in Oldfield v Oldfield, the key issues for determination were whether an advisory trustee should be appointed, compensation for legal fees paid by Mr and Mrs Oldfield, whether an equalisation of legal fee distributions should be made, and whether independence payments for Mr and Mrs Oldfield should be made. The trust deed requires modification; however, this is something that can be done as a final step in completing this proceeding.

The court rejected the appointment of an advisory trustee as it was concerned about the cost of appointing a professional to this role, which may impact adversely on the trust. The court also rejected the idea of paying an equalisation sum to Mr Oldfield for his significantly lower legal costs as it found that it was not appropriate in principle and that, given the financial concerns identified by Perpetual, no such payment should be ordered. The court further rejected the idea of making independence payments to Mr and Mrs Oldfield, stating that it would be wrong to order cash independence payments now given the financial circumstances of the trust and the current economic times are uncertain. Finally, the court decided that future legal costs should be dealt with on a case by case basis.

The final orders made by the court were that no order is made for the appointment of an advisory trustee; Perpetual is to pay from the funds of the trust Mrs Oldfield’s legal costs of $310,516.39 and Mr Oldfield’s legal costs of $108,463.25; no equalisation payment is ordered to be paid to Mr Oldfield; no independence payments are ordered for to either Mr or Mrs Oldfield; future legal costs are to be determined on a case by case basis; and modification of the trust deed is to be determined later once all other matters are resolved.

Orders