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Public Trust v Kain

Public Trust v Kain

Case [2021] NZHC 1000 6 May 2021

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-40

[2021] NZHC 1000

UNDER Trustee Act 1956

IN THE MATTER OF

an application by the trustees for directions under s 66 of the Trustee Act 1956

BETWEEN

PUBLIC TRUST

Plaintiff

AND

GEORGINA KAIN, GEORGE CHARLES KAIN, GEORGE HARRY COUPER KAIN,

… continued over

Hearing: 19-20 October 2020

Appearances:

B D Gray QC and A G Holden for Plaintiff

J W A Johnson and W L Porter for 1st to 4th Named First Defendants

T C Weston QC and A V Foote for 5th Named First Defendant M J Wallace for 6th to 18th Named First Defendants and

1st to 13th Named Second Defendants

J F Anderson QC for 19th to 21st Named First Defendants and 14th to 16th Named Second Defendants

Judgment:

6 May 2021

JUDGMENT OF MANDER J

This judgment was delivered by me on 6 May 2021 at 2 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

PUBLIC TRUST v KAIN [2021] NZHC 1000 [6 May 2021]

GEORGE MICHAEL KAIN, MARY HUTTON, MARNIE COUPIE FORCER KAIN, JACK KAIN, MOLLY KAIN,
RACHEL KAIN, STANLEY KAIN,
WOLSEY KAIN, GEORGE KAIN, ASTA KAIN, MADELINE KAIN, GEORGE KAIN, MICHAEL KAIN, RUPERT KAIN, SAMUEL KAIN, GEORGIA
HUMPHREYS, CONSTANCE HUTTON and HARRIET HUTTON
First Defendants

ANDMARNIE COUPIE FORCER KAIN, JACK KAIN, MOLLY KAIN, RACHEL KAIN, STANLEY KAIN, WOLSEY KAIN, GEORGE KAIN, ASTA KAIN, MADELINE KAIN, GEORGE KAIN, MICHAEL KAIN, RUPERT KAIN, SAMUEL KAIN, GEORGIA
HUMPHREYS, CONSTANCE HUTTON, HARRIET HUTTON, DAVID WHYTE, KIRSTY MARGUERITE COUPER MASTERSON and ELIZABETH DIANE COUPER FRENDIN
Second Defendants

[1] Public Trust has applied for directions under s 66 of the Trustee Act 1956 (the Act) in its capacity as trustee of the Waitaha and Middle Road Block Trusts. Both trusts are part of a larger group of trusts, estates and companies that are known to the parties, all of whom are related, as the “Couper-Kain Group”.

[2] By its application, Public Trust seeks the Court’s guidance on issues that it says are matters of law that are in contention between the parties regarding the scope of its discretion to make distributions from the trusts. Similar directions are sought in respect of each trust. While Public Trust maintains that it takes a neutral position and does not seek a particular outcome or form of direction, it has provided the Court with its view of what it considers to be the correct legal position.

[3] The defendants are either beneficiaries of the Waitaha Trust or of both that Trust and the Middle Road Block Trust. They fall into two opposing factions of the family that either support or oppose Public Trust’s initiative to obtain directions. The present application is the latest chapter in a prolonged contest between members of the family regarding the administration of the family trusts. The parties are deeply divided over the factual narrative that sits behind the long running dispute. However, the following…

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 Public Trust v Kain

Details

AGLC: Public Trust v Kain [2021] NZHC 1000
Case: [2021] NZHC 1000
Decision Date: 6 May 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Public Trust, in its capacity as trustee of the Waitaha and Middle Road Block Trusts, applied for directions under s 66 of the Trustee Act 1956. The application was made in the context of a long-running dispute between the trustees and the beneficiaries of the family trusts. The court was required to determine whether directions could be made on issues of legal principle in the absence of a settled factual narrative between the parties. The court found that while directions could be made on certain issues of law, others could not be made in the absence of a settled factual narrative between the parties. In respect of the Waitaha Trust, the court found that while the 1997 deed was not binding on Public Trust, it was required to take into account the principle of equality derived from the 1997 deed insofar as it was able to do so and only to the extent that it was consistent with its other duties as a trustee. In respect of the Middle Road Block Trust, the 1997 deed was not binding on Public Trust and could not be taken into account. Public Trust was not required to ensure that all beneficiaries of the Waitaha Trust or the Middle Road Block Trust received equal amounts from those trusts. Finally, Public Trust was required to take into account the wishes of the settlor, Tom Couper, provided they were not inconsistent with the terms of the Trust and its purpose. Where subsequent wishes were inconsistent, Public Trust was in principle entitled to consider the most recent wishes as overriding earlier wishes, however, it remained a matter for Public Trust’s assessment, in the exercise of its discretion to vest or make distributions, whether in the circumstances the subsequent wishes of the settlor, Tom Couper, should have that effect.

Orders