Powell v Powell - [2014] NZHC 2096

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2013-409-001371 [2014] NZHC 2096

BETWEEN
JOHN WILLIAM POWELL

Plaintiff

AND

DANIEL JOHN POWELL Defendant

AND

CHARLOTTE TERESA GAVIN (NEE POWELL)

Interested Party

Hearing: 11 August 2014

Appearances:

J V Ormsby and C L Webber for Plaintiff S M Grieve and S A Woods for Defendant J Moss for Interested Party

Judgment:

2 September 2014

JUDGMENT OF DUNNINGHAM J

[1] In a written judgment issued on 14 March 2014, I ordered the removal of the plaintiff, John Powell, as a trustee of the Daniel Powell Family Trust. I did not order the removal of the defendant, Daniel Powell, as a trustee.

[2] I relied on a number of factors in reaching my decision:

(a) John and Daniel could no longer work together as trustees;

(b)the various criticisms of Daniel’s conduct and his business skills were either not sustained, or were not, in my assessment, matters that would prevent him from carrying out his duties as trustee responsibly,
when working with another independent professional trustee;

POWELL v POWELL [2014] NZHC 2096 [2 September 2014]

(c) the apparent intention of the settlor was to allow the child after whom the trust was made, to manage the trust’s assets for the benefit of the beneficiaries, which included that child’s family;

(d)the principle that the Court not intervene by removing trustees except to the extent necessary in order to ensure the proper administration of the Trust for the benefit of the beneficiaries.

[3] I also referred to the effect of clause 13.4 of the Trust Deed which provided for a minimum of two continuing trustees. I did not avert to the provisions of s 48 of the Trustee Act 1956 which allows a single corporate trustee to be appointed notwithstanding the provisions of the Trust Deed. That was in error.

[4] Because that erroneous assumption was relevant to my decision, the appeal was allowed and the proceeding was remitted back to the High Court for reconsideration.

What is the issue for determination?

[5] The sole issue for determination is whether, in light of the provisions of s 48 which allow a single corporate trustee to be appointed in place of the minimum of two trustees required by the trust deed, my findings should alter.

[6] A hearing was convened to hear submissions on that issue. The arguments raised on behalf of John were:

(a) Was the principle of “minimum intervention” relevant in the present

case?

(b) Did the Court, as a result of the error, adopt the wrong starting point? (c) Should the “fresh evidence” justify revisiting the decision and

confirming the appointment of a single corporate trustee?

[7] Counsel for Charlotte supported John’s arguments, and also argued that the appointment of a single corporate trustee was required to resolve the issue of inter-family conflict and prevent future deadlock.

[8] I discuss these issues in the following paragraphs.

Was the principle of “minimum intervention” relevant in this case?

[9] The plaintiff submitted that the Court had…

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 [2014] NZHC 2096
Case: [2014] NZHC 2096
Decision Date: 2 September 2014

CaseChat Overview and Summary

This appeal concerns a decision to remove one of two trustees from a family trust. The plaintiff, John William Powell, appeals against the judge’s decision to remove only him as trustee and not the defendant, Daniel John Powell. Charlotte Teresa Gavin, an interested party, supports the plaintiff’s appeal. The issue for determination is whether the court’s findings should change in light of the statutory provision that allows a single corporate trustee to be appointed in place of the minimum of two trustees required by the trust deed. The plaintiff contends that the court’s erroneous assumption that two trustees were required to be in office was relevant to the decision and that it should be revisited in light of the statutory provision. He also submits that the court adopted the wrong starting point and that the fresh evidence justifies revisiting the decision. The interested party submits that appointing a single corporate trustee is required to resolve the issue of inter-family conflict and prevent future deadlock. The court rejected the plaintiff’s arguments. It found that the principle of “minimum intervention” was not relevant to the present question, as the statutory provision only allows an alternative option to the option of appointing two independent trustees. The court also found that it did not adopt the wrong starting point, as the option of removing both trustees was considered. Finally, the court found that the fresh evidence does not bring any concerns to light that were not apparent when the substantive hearing occurred. The court confirmed its earlier decision to remove only the plaintiff as a trustee, to be replaced by an independent professional trustee. It did not order the removal and replacement of Daniel Powell as a trustee.

Orders