Oldfield v Oldfield

[2019] NZHC 492

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV 2018-419-000261

[2019] NZHC 492

BETWEEN

DOROTHY ANN OLDFIELD

 Plaintiff

AND

KENNETH DAVID OLDFIELD

 Defendant

Hearing:

5 & 6 February 2019

Appearances:

A Grant for Plaintiff

P J Morgan QC & Z Mora for Defendant

Judgment:

19 March 2019

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 19 March 2019 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Nevermann Bennett, Hamilton McCaw Lewis, Hamilton

OLDFIELD v OLDFIELD [2019] NZHC 492 [19 March 2019]

Introduction

[1]                 The plaintiff, Dorothy Oldfield, has applied for an order to remove her former husband, David Oldfield, as trustee of the David Oldfield Family Trust (Trust). She has also applied to have Mr and Mrs Oldfield’s son, John Oldfield (John), appointed trustee in Mr Oldfield’s place.

[2]                 Mr Oldfield opposes Mrs Oldfield’s application and says now is not an appropriate time to replace the trustees. He says who should be trustees of the Trust and how the Trust’s assets should be disposed of should be decided in the context of Mrs Oldfield’s applications under the Property (Relationships) Act 1976 (PRA) and the Family Proceedings Act 1980 (FPA). He seeks an expedited hearing of that application and of his own proposals for a vesting of trust property.

[3]  Mr Oldfield also says that if he is removed as a trustee then Mrs Oldfield should also be removed. He also says John is not an appropriate person to be appointed as trustee.

[4]                 The issues for the Court are whether to remove Mr Oldfield as a trustee and, if so, whether to remove Mrs Oldfield as a trustee as well, and, if either or both are removed, who should be appointed in their places.

Relevant background

[5]                 Mr and Mrs Oldfield were married in 1971. They were together for 44 years and have three adult children, Susan Oldfield (Susan), Michael Oldfield (Michael), and John. Mr and Mrs Oldfield separated in February 2015.

[6]                 The Trust was established by a Trust Deed dated 30 November 1988. The Deed’s terms were varied by deed in 2005. The trustees are Mr Oldfield, Mrs Oldfield and Peter Stewart, an independent trustee. Mr Stewart has indicated he no longer wishes to be a trustee.

[7]Under the Trust Deed:

(a)The settlors of the Trust are Mr and Mrs Oldfield;

(b)The capital beneficiaries are Susan, Michael and John;

(c)The discretionary beneficiaries are:

(i)Mr and Mrs Oldfield;

(ii)The capital beneficiaries;

(iii)Any children or grandchildren of the capital beneficiaries who, in the reasonable opinion of the trustees, exhibits the characteristics set out in clause 3.4 of the Trust Deed;

(iv)Trustees of any trusts of which the above persons are beneficiaries;

(v)Any charitable trust purpose or institution involved in the advancement of education;

(d)The Trust may pay income towards the maintenance of Mr and Mrs Oldfield and to the education, advancement or benefit of any of the discretionary beneficiaries who,…