Paleae v Paleae - [2017] NZHC 2007

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2017-404-000193

[2017] NZHC 2007

UNDER the Trustee Act 1956

BETWEEN

TINA KRISTINA PALEAE AND ANATASIA SIAUINI AS TRUSTEES OF THE PALEAE NUMBER 2 FAMILY TRUST

Plaintiffs

AND

MOANA PALEAE, TIANA PALEAE, IOANE PALEAE AND TINA PALEAE AS TRUSTEES OF THE PALEAE FAMILY TRUST

Defendants

Hearing: 16 August 2017

Appearances:

O Woodroffe for Plaintiffs

No appearance for Defendants

Judgment:

22 August 2017

INTERIM JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 22 August 2017 at 11.30am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Woodroffe Lawyers, Auckland

PALEAE v PALEAE [2017] NZHC 2007 [22 August 2017]

Introduction

[1] The plaintiffs – Tina Kristina Paleae (“Kristina”) and Anatasia Siauini (“Ann”) – seek an order appointing them as substitute trustees of the Paleae Family Trust under s 51 of the Trustee Act 1956. In the alternative, they seek an order vesting the legal interest of the fourth named defendant – Tina Paleae (“Tina”) – in a property in Auckland into the names of the other three defendants as trustees of the Paleae Family Trust.

[2] The proceedings were served on the first to third named defendants – Moana Paleae (“Moana”), Tiana Paleae (“Tiana”) and Ioane Paleae (“Ioane”) on 17 February 2017. An affidavit of service has been filed.

[3] Tina lives in Australia. The plaintiffs attempted to serve her, but were unable to do so. An order for substituted service was made by Associate Judge Christiansen on March 2017. Service has been effected on Tina pursuant to that order, and there is an affidavit to that effect on the Court file.

[4]None of the defendants have taken any steps in the proceeding.

[5]This matter has proceeded by way of formal proof.

Introduction

[6] Kristina and Ann are trustees of a trust known as the Paleae Number Two Family Trust.

[7] In 1999, Kristina and Ann purchased a property in Bernard Street, Mt Wellington. They jointly paid the deposit and the balance of the purchase price was secured by way of mortgage. They lived in the property with their parents, Mr and Mrs Paleae senior.

[8] In 2005, Kristina and Ann refinanced the Bernard Street property. In order to obtain approval to the refinancing, Ann’s husband – Lefifi Siauini (“Lefifi”) – and Kristina and Ann’s brother, Iese Paleae (“Iese”) became joint owners of the property.

[9] Also in 2005, three of the defendants, Moana, Tiana and Tina migrated from Samoa to New Zealand. They came to live in the Bernard Street property. The other defendant, Ioane, also came to live in the property in about June 2006.

[10] The plaintiffs and the defendants were cousins. In about 2006/2007, the defendants were adopted by Mr and Mrs Paleae senior.

[11] By August 2007, it had become clear that the Bernard Street property was overcrowded. The decision was made within the family that an additional property should be purchased. The family found a new property in Plumley Crescent,…

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: [2017] NZHC 2007
Decision Date: 22 August 2017

CaseChat Overview and Summary

The High Court of New Zealand heard an application by Kristina and Ann, trustees of the Paleae Number Two Family Trust, to be appointed as substitute trustees of the Paleae Family Trust under the Trustee Act 1956. Alternatively, they sought to vest Tina's interest in a property in Auckland into the names of the other defendants as trustees of the Paleae Family Trust. The defendants, Moana, Tiana, Ioane, and Tina, did not appear or respond to the proceedings. The court had to determine whether it was expedient to appoint new trustees and whether it was inexpedient, difficult, or impracticable to do so without the court's assistance. The court found that it was expedient to appoint new trustees as the defendants had expressed their desire not to be involved in the trust and had failed in their duties as trustees. The court also found that it was inexpedient, difficult, or impracticable to appoint new trustees without the court's assistance as the existing trustees had failed to respond to multiple requests to finalise the resettlement of the trust property. The court was satisfied that Kristina and Ann were the best suited to administer the trust property in the interests of all beneficiaries, including the defendants. However, the court was not prepared to appoint Kristina and Ann as new trustees in substitution for the existing trustees as it would breach the trust deed's requirement for a minimum of four trustees. The court invited counsel for the plaintiffs to file a memorandum advising how the matter should be resolved.

The court found that it was appropriate to appoint Kristina and Ann as trustees of the Paleae Family Trust, but the trust deed's requirement for a minimum of four trustees presented a difficulty. The court was not prepared to appoint Kristina and Ann as new trustees in substitution for the existing trustees as it would breach the trust deed. The court invited counsel for the plaintiffs to file a memorandum advising how the matter should be resolved. The court was prepared to deal with the matter on short notice if a memorandum could be filed that week. The final orders of the court were not provided in the text.

Orders