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Re Darlow

Re Darlow

Case [2021] NZHC 2184 24 August 2021

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-603

[2021] NZHC 2184

UNDER Sections 124 and 133 of theTrusts Act 2019 and Part 18 of the High Court Rules 2016

IN THE MATTER OF

The Hugh Green Trust and the Hugh Green Property Trust

BETWEEN

CHRISTOPHER ROBERT DARLOW, DAVID HARDING RANDELL, JOHN

PATRICK GREEN, FRANCES KATHLEEN GREEN AND CATHERINE MAREE
GREEN as trustees of the Hugh Green Trust First Plaintiffs

AND

CHRISTOPHER ROBERT DARLOW, DAVID HARDING RANDELL, JOHN

PATRICK GREEN, FRANCES KATHLEEN GREEN AND CATHERINE MAREE

GREEN as trustees of the Hugh Green Property Trust

Second Plaintiffs

Hearing: 12 July 2021

Appearances:

M D Arthur and T F Cleary for the Plaintiffs D J Chisholm QC for Moira Ellen Green

M D O’Brien QC, T P Mullins and A W McDonald for grandchildren via John Green and via Gerard Green

A H Waalkens QC for Eamonn Paul Green, (on instructions from P McKendrick and N J Cahill for Frances Kathleen Green and grandchildren via Frances Green)

S J Mills QC, T P Mullins and A W McDonald for the unknown, unborn and minor beneficiaries

R B Lange and J D Ryan for John Patrick Green A J Bell for Gerard Joseph Buckley Green

Judgment:

24 August 2021

Reissued:

9 September 2021

RE HUGH GREEN TRUSTS [2021] NZHC 2184 [24 August 2021]

JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 24 August 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

This judgment was recalled and reissued on 9 September 2021 ( see Addendum)

Counsel/Solicitors:
Chapman Tripp, Auckland
D J Chisholm QC, Barrister, Auckland M D O’Brien QC, Barrister, Auckland Lee Salmon Long, Auckland
A H Waalkens QC, Auckland Glaister Ennor, Auckland
S J Mills QC, Auckland Simpson Grierson, Auckland McVeagh Fleming, Albany
Claymore Partners, Auckland

Introduction

[1] The spirit of philanthropy is no better demonstrated in New Zealand than by the Green family. From humble Irish immigrant beginnings, the late Hugh Green and his surviving wife Moira built a property development and investment empire of very substantial value, while remaining dedicated to supporting the community in which they lived on a “hand up not a hand out” basis.1 They instilled in their children and grandchildren the same personal and civic values. Their charitable vehicle, the Hugh Green Foundation (“the Foundation”), has made bequests in the tens of millions of dollars. Their daughter Maryanne has likewise established a charitable foundation, the Hugo Foundation, on which an additional $75 million was settled as part of a family agreement in 2017.

[2] Now Moira, the children (excluding Maryanne) and grandchildren (excluding Maryanne’s daughter Alice)2 join in an application to the Court which is likely to see some hundreds of millions of dollars which would otherwise devolve on family members pass to the Foundation. In so doing the family wishes to ensure that, for generations to come, the philanthropic legacy of Hugh and…

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 Re Darlow

Details

AGLC: Re Darlow [2021] NZHC 2184
Case: [2021] NZHC 2184
Decision Date: 24 August 2021

CaseChat Overview and Summary

The case involves an application by trustees of the Hugh Green Trust and the Hugh Green Property Trust to restructure the trusts. The application seeks directions under section 133 of the Trusts Act 2019 to confirm that the trustees’ decisions to restructure the trusts are within their powers and approval under section 124 of the Act to vary the Hugh Green Trust deed on behalf of unknown, unborn or minor beneficiaries. The High Court of New Zealand Auckland Registry granted the application. The Court found that the proposed restructuring, which involved amalgamating the two trusts and redistributing assets to the Hugh Green Foundation and the grandchildren of the late Hugh Green, aligned with the intentions of Hugh and Moira Green. The Court also found that the restructuring would promote family harmony and provide for the efficient running of the Group. The Court concluded that the restructuring would not be detrimental to unknown, unborn or minor beneficiaries and granted the application.

Orders