| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA546/2014 [2015] NZCA 133 |
| BETWEEN | JOHN WILLIAM POWELL |
| AND | DANIEL JOHN POWELL CHARLOTTE TERESA GAVIN |
| Hearing: | 26 November 2014 |
Court: | Stevens, White and Cooper JJ |
Counsel: | J V Ormsby and J P Bell-Connell for Appellant |
Judgment: | 24 April 2015 at 3.30 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay the first respondent’s costs calculated for a standard appeal on a band A basis. We certify for two counsel.
____________________________________________________________________
REASONS OF THE COURT
(Given by Cooper J)
Table of Contents
Para No
Introduction [1]
Background facts [7]
The High Court judgments [24]
The first judgment [25]
The second judgment [36]
The appeal [43]
The law [45]
The issues [57]
The settlor’s intentions [58]
Minimum intervention [70]
Reliance on an independent trustee [80]
Daniel’s attack on John [91]
Cumulative evidence as to Daniel’s unsuitability [97]
Result and costs [99]
Introduction
This is an appeal against a judgment of Dunningham J in which she declined to remove the respondent, Daniel Powell, as a trustee of the Daniel Powell Family Trust (DPF Trust), but ordered the removal of the appellant, John Powell, and directed that he be replaced by an independent professional trustee (the second judgment).[1] Where appropriate and to avoid confusion, we will refer to parties by their first names in this judgment.
[1]Powell v Powell [2014] NZHC 2096 [second judgment].
John is Daniel’s father. He commenced the proceeding in the High Court, seeking the removal of Daniel as a trustee of the DPF Trust, and the appointment of an independent trustee in his stead. The application was made on the basis that John would also step down as trustee. Daniel counterclaimed, seeking that John be removed as a trustee while Daniel himself remained in that role, either alone or together with an independent trustee.
The second judgment confirmed orders Dunningham J had made in an earlier judgment (the first judgment),[2] which was itself the subject of an appeal to this Court. The position was explained in this Court’s minute of 24 June 2014:[3]
[2] By way of brief background, this appeal was set down for hearing at 10 am tomorrow. The main issue was whether Dunningham J erred by ordering the removal of John Powell as trustee and his replacement by an independent trustee. In making that order the Judge proceeded on what is now conceded to be an error of law – namely, that the trust deed required a minimum of two continuing trustees. However, s 48 of the Trustee Act 1956 allows the appointment of a single trustee corporation regardless of the provisions of the trust deed.
[2]Powell v Powell [2014] NZHC 476 [first judgment].
[3]Powell v Powell CA192/2014, 24 June 2014.
The Court was satisfied that this error was directly material to the Judge’s decision. The appeal was allowed and remitted to…
Continue reading Powell v Powell
Sign in free to access the full text
- AGLC
- Powell v Powell [2015] NZCA 133
- Case
- [2015] NZCA 133
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.