Pene v Tata - [2019] NZHC 669

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-822

[2019] NZHC 669

IN THE MATTER of the Trustee Act 1956

BETWEEN

SUSANNE HARIATA PENE

Applicant

AND

PHILIP NGAWAKA TATA

Respondent

Hearing: 2 April 2019

Appearances:

J C LaHatte for the Applicant

No appearance by or on behalf of the Respondent P M Webb for the Independent Trustee

Judgment:

2 April 2019

ORAL JUDGMENT OF GORDON J

Solicitors: Ord Legal, Wellington
Kemps Weir Lawyers Ltd, Auckland Denham Bramwell, Auckland

PENE v TATA [2019] NZHC 669 [2 April 2019]

Introduction

[1] This is an application by Brett Abraham, independent trustee of the Tata Family Trust. Mr Abraham is one of three trustees (new trustees) appointed by order of this Court on 5 March 2018.

[2] The application seeks the removal of the three new trustees and the appointment of a corporate trustee, as sole trustee, in their place.

[3] Miriam Matrix, one of the two other new trustees, consents to the orders being made.

[4] The third new trustee, Arepa Tata (Arepa),1 has not taken any steps in relation to this application. It is his conduct, which I will refer to below, which has necessitated the application.

Background

[5] The Tata Family Trust was settled on 4 November 2002. Following the death of the settlors, Mr and Mrs Tata Senior, disputes arose among the beneficiaries as to the administration of the Trust. The only asset of the Trust is the property at 5 Sutton Avenue, Mangere East, Auckland (the Trust property). The proceeding which resulted in the Court orders on 5 March 2018 was initiated by an application which sought to resolve the impasse that had arisen.

[6] A consent memorandum (undated but filed for a court event on 21 December 2017) sought resolution of the matter by providing for an identified family member from each side of the family to be appointed along with an independent trustee and that thereafter the respondent, Philip Tata, would retire as trustee. At that time Philip was the only surviving trustee. The original trustees were Mr and Mrs Tata Senior and Philip.

1 I will use Arepa Tata’s Christian name to avoid any risk of confusion with Philip Tata who will also be mentioned in the judgment.

[7] On 5 March 2018, Downs J made orders in terms of the consent memorandum I have referred to. That memorandum provided for Ms Matrix and Arepa to be appointed along with an independent trustee. Mr Abraham was subsequently appointed as the independent trustee.

[8] The consent memorandum and thus the order made on 5 March 2018 provides for precise and specific steps to be taken by the trustees to arrange the sale of the Trust property, pay the proper costs that had been incurred and thereafter to distribute the net proceeds to the beneficiaries of the Trust.

[9] In his affidavit sworn 15 March 2019 in support of the application, Mr Abraham deposes that Arepa has not…

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 Pene v Tata

Details

AGLC: Pene v Tata [2019] NZHC 669
Case: [2019] NZHC 669
Decision Date: 2 April 2019

CaseChat Overview and Summary

This case involved an application by Brett Abraham, the independent trustee of the Tata Family Trust, to remove the three new trustees appointed by the Court on 5 March 2018 and replace them with a corporate trustee. The primary legal issues before the Court were whether the Court had jurisdiction to appoint a corporate trustee in place of the existing trustees and whether the independent trustee had established that such an appointment was necessary and expedient. The Court found that the conduct of one of the new trustees, Arepa Tata, justified the removal of the trustees and the appointment of a corporate trustee to ensure the efficient and least costly winding up of the family trust.

The Court held that it had jurisdiction under section 51(1) of the Trustee Act 1956 to appoint a new trustee or trustees where it is found inexpedient, difficult, or impracticable to do so without the assistance of the Court. The Court also noted that one of the situations in which the power under section 51 may be exercised is where a trustee refuses to act in a reasonable and cooperative manner with other trustees. The Court found that Arepa's failure to cooperate in the conduct of the trust justified the making of the order sought. The Court also found that the trust deed did not prohibit the appointment of a corporate trustee, as it provided that the trustee may be a corporation provided it had two directors, which was the position in this case. The Court therefore made the following orders:

(a) Removing Arepa Tata, Miriam Paiatehau Matrix and Brett Rodney Bramwell Abraham as trustees of the Tata Family Trust; and

(b) Appointing BRBA Trustees No 27 Limited as trustee of the Tata Family Trust.

The Court also made an order that the interest of the Tata Family Trust in the property at 5 Sutton Avenue, Mangere East, Auckland now vests in the sole name of BRBA Trustees No 27 Ltd. The Court further confirmed that all other conditions as contained in the consent memorandum and confirmed by the order of Downs J on 5 March 2018, are to remain (with any necessary modifications arising out of the Court's orders). The applicant did not seek costs.

Orders