Re Burnett Mount Cook Station Charitable Trust - [2016] NZHC 2669

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2016-476-000026 [2016] NZHC 2669

IN THE MATTER OF
BURNETT MOUNT COOK STATION

CHARITABLE TRUST

BETWEEN

THE PUBLIC TRUSTEE Substituted Applicant

MICHAEL ASKIN, TRUSTEE OF THE BURNETT MOUNT COOK STATION CHARITABLE TRUST

Original First Applicant

JOSEPH GORDON BUTTERFIELD DEREK JOHN TAYLOR

EUWAN BOYD LINDSAY HILSON Original Second Applicants

THE ATTORNEY-GENERAL GUIDE HILL STATION LIMITED LINDA BEVERLEY SUNDBERG JANINE NORA SUNDBERG CLINT MILES

ALANA MILES DAVID GOULD

Parties Directed to be Served

NEVILLE JOHN CUNNINGHAM MOUNT COOK TROPHY HUNTING LIMITED

MAUREEN MYRA VANCE DAVID MICHAEL LAWRY ROYAL FOREST AND BIRD PROTECTION SOCIETY OF

NEW ZEALAND INCORPORATED KATRINA GRIFFITHS

Subsequent Parties (Objectors)

Hearing: 15-16 September & 4 October 2016

Appearances:

R J Hopkins for Substituted Applicant - Public Trustee (only on
4 October 2016)

A Powell and A Dixon for Attorney General

RE BURNETT MOUNT COOK STATION CHARITABLE TRUST [2016] NZHC 2669 [8 November 2016]

J V Ormsby, H T Shaw and S D Campbell for Original First and

Second Applicants
P J Page for Guide Hill Station Limited
G A Hair and M J McKay for L and J Sundberg
T J Castle for N Cunningham and Mount Cook Trophy Hunting
Limited (present only on 4 October 2016)
P Anderson for Royal Forest and Bird Protection Society of
New Zealand Incorporated
N Cunningham - Appearing in Person and for Mount Cook
Trophy Hunting Limited (but only on 15 and 16 September
2016) - T J Castle Counsel Appearing 4 October 2016
K Griffiths - Appearing in Person
M M Vance - Appearing in Person
D Lawry - Appearing in Person (present only on 15 and 16
September 2016)
J Finlayson - Appearing in Person
Professor H Tane - Appearing in Person (present only on 4
October 2016)

Judgment:

8 November 2016

JUDGMENT OF GENDALL J

Table of Contents

Para No

Introduction [1]

Present application [6]

Procedural History [11]

Background facts [26]

Section 66 application [44]

The law on s 66 applications [50]

Parties’ positions on s 66 application [60]

-     Public Trustee’s position [61]

-     Attorney-General’s position [64]

-     Original Applicants’ position [67]

-     Guide Hill Station Limited and Gould Interests’ position [75]

-     Position of L and J Sundberg in opposition [79]

-     Position of N Cunningham and Mount Cook Trophy Hunting Limited in

opposition
[84]

-     Position of Royal Forest and Bird Protection Society of New Zealand

Incorporated in opposition
[87]

-     Position of K Griffiths in opposition [92]

-     Position of M Vance in opposition [93]

-     Position of D Lawry in opposition [95]

-     Position of J R Finlayson [99]

-     Position of Professor H Tane in opposition [100]

Discussion [101]

Conclusion [138]

Decision/Direction [139]

Costs [140]

Addendum [142]

NOTE: Subsequent to the release of this judgment a short addendum has been added at para [142] with respect to two minor typographical errors which occurred at para [66] of the original judgment.

Introduction

[1] Since the 1860’s, three generations of the Burnett Family have farmed land in

the Mackenzie…

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.

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Details

Case: [2016] NZHC 2669
Decision Date: 8 November 2016

CaseChat Overview and Summary

The Burnett Mount Cook Station Charitable Trust was established in 2009 by Donald Burnett, with the aim of preserving and protecting the natural and historic heritage of the 2,610 hectares property known as Mount Cook Station and Cox’s Downs. The property was transferred to the trust in 2015. Following Donald's death, the original trustees sought to sell the property to Guide Hill Station Limited and the Gould Family. This application was opposed by various parties, including the Royal Forest and Bird Protection Society of New Zealand. The Public Trustee was appointed as the trustee of the trust. The court was asked to provide directions under section 66 of the Trustee Act 1956 for the sale of the property. The court found that the charitable objects of the trust did not demand continual ownership of the property by the trust. A sale of the property could be achieved while still adhering to the charitable objects of the trust if it was subject to a registered encumbrance running with the land, requiring the purchaser and subsequent owners to adhere to and fulfil the charitable objects of the trust. The court made the direction that the sale of the property was approved on the basis that the purchaser was prepared to take and secure the property for the future subject to the terms of the trust.

Orders