Queenin v Queenin - [2024] NZHC 1035

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-451

[2024] NZHC 1035

UNDER Part 18 of the High Court Rules 2016, and the Trusts Act 2019, section 107(3), section
109(1), section 126, and section 127 and the Court’s inherent jurisdiction

IN THE MATTER OF

The Queenin Family Trust

BETWEEN

AARON MARC QUEENIN

Plaintiff

AND

BERTRAM ERIC QUEENIN

First Defendant

DIANA RUTH QUEENIN

Second Defendant

Hearing: 2 October 2023

Appearances:

Further submissions completed:

A W Johnson and K Kennedy for the Plaintiff N P Tetzlaff for the Defendant

24 October 2023

Judgment:

2 May 2024

JUDGMENT OF POWELL J

This judgment was delivered by me on 2 May 2024 at 4.00 pm pursuant to
r 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

Solicitors:
Martelli McKegg Smith and Partners

AARON MARC QUEENIN v BERTRAM ERIC QUEENIN [2024] NZHC 1035 [2 May 2024]

Introduction [1]

Trusts Act 2019  [7]
The Queenin Family Trust  [10]
How the present dispute arose  [14]
Discussion  [52]
Decision  [78]

Introduction

[1] The present case concerns the operation of the Queenin Family Trust (“the trust”). The trust was established by the defendants Bertram and Diana Queenin (“Bert and Diana”) in late 2007. At that time, Bert and Diana settled three properties into the trust: their home in Titirangi, their bach at Clarks Beach and a rental property in Kelston (“the trust properties”).

[2] As well as appointing themselves as trustees, they also appointed one of their three sons, the plaintiff Aaron Queenin (“Aaron”), as a trustee.

[3] As is commonly the case, there was little in the way of formal decision making undertaken by the trust. Day-to-day maintenance of the trust properties appears to have been carried out by Bert and Diana for which they appeared to have been informally remunerated by the trust from time-to-time, albeit in the absence of any formal decision taken by the trustees. Indeed, the only written decisions that appear to have been made by the trustees related to the formal gifting of the properties to the trust, a process completed in 2012.

[4] Things changed in 2022. Following the enactment of the Trusts Act 2019 (“Trusts Act”), Bert and Diana had noted higher compliance costs and started thinking as to whether the trust was still necessary. As a result, they sought advice from their firm of accountants, Wyse & Auger, regarding the tax implications of winding up the trust, and decided sometime in early 2022 that this was a sensible course to pursue.

[5] Unfortunately for the family, their decision to follow through on this approach has led directly to the present proceedings. When Aaron did not appear to support winding up the trust, Bert and Diana took steps to remove him as a trustee and have purported to appoint a newly incorporated corporate trustee controlled by their accountant in his place. In attempting to prevent his removal, Aaron has alleged that Bert and Diana have breached their own obligations as…

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 Queenin v Queenin

Details

AGLC: Queenin v Queenin [2024] NZHC 1035
Case: [2024] NZHC 1035
Decision Date: 2 May 2024

CaseChat Overview and Summary

The present case concerns the operation of the Queenin Family Trust. The trust was established by the defendants, Bertram and Diana Queenin, in late 2007, settling three properties into the trust. As well as appointing themselves as trustees, they appointed one of their sons, the plaintiff Aaron Queenin, as a trustee. Things changed in 2022. Following the enactment of the Trusts Act 2019, Bertram and Diana noted higher compliance costs and decided to wind up the trust. When Aaron did not appear to support winding up the trust, Bertram and Diana took steps to remove Aaron as a trustee and have purported to appoint a newly incorporated corporate trustee in his place. In attempting to prevent his removal, Aaron alleged that Bertram and Diana breached their own obligations as trustees and seeks their replacement by an independent trustee company. At issue between the parties is whether, pursuant to the trust deed and/or the relevant provisions of the Trusts Act, Bertram and Diana were able to remove Aaron as a trustee and/or whether they themselves should be removed and replaced by an independent trustee company. The Court found that the removal of Aaron was lawful and that it was not appropriate to appoint an independent trustee. In the result, Aaron's application was dismissed and he was ordered to pay his own costs.

Orders