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Powell v Powell

Powell v Powell

Case [2015] NZCA 133 24 April 2015

Trustee Appointment and Removal

Settlor's Intention

Minimum Intervention

Trusts & Equity

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA546/2014
[2015] NZCA 133

BETWEEN

JOHN WILLIAM POWELL
Appellant

AND

DANIEL JOHN POWELL
First Respondent

CHARLOTTE TERESA GAVIN
Second Respondent

Hearing:	26 November 2014
Court:	Stevens, White and Cooper JJ
Counsel:	J V Ormsby and J P Bell-Connell for Appellant S M Grieve and S A Woods for First Respondent No appearance for Second Respondent
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…

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 Powell v Powell

Details

AGLC: Powell v Powell [2015] NZCA 133
Case: [2015] NZCA 133
Decision Date: 24 April 2015 at 3.30 pm

CaseChat Overview and Summary

This appeal was 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, but ordered the removal of the appellant, John Powell, and directed that he be replaced by an independent professional trustee. The Court of Appeal was satisfied that the Judge's orders were properly made and dismissed the appeal. The appellant was ordered to pay the first respondent's costs calculated for a standard appeal on a band A basis.

Orders