Re Macalister - [2021] NZHC 3572

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2021-485-526

[2021] NZHC 3572

UNDER Parts 18 and 19 of the High Court Rules and the Trusts Act 2019

IN THE MATTER OF

the Robert Lachlan Macalister Trust

BETWEEN

GRAEME MACDONALD MACALISTER, ANDREW CHARLES MACALISTER and ROBERT BLAIR MACALISTER as

trustees of the Robert Lachlan Macalister Trust

Applicants

On the papers

Counsel:

J A Tocher for Applicants

Judgment:

20 December 2021

JUDGMENT OF MALLON J

Introduction

[1] The applicants are the trustees of the Robert Lachlan Macalister Trust (RLM Trust). They seek orders adding a clause to the trust deed, directing the trustees to sell the RLM Trust property (the Blackwood Bay property), directing the distribution of the sale proceeds, and directing the distribution of the RLM Trust residue. These orders are sought in accordance with a Deed of Settlement dated 2 August 2021 that brought an end to litigation between some of the beneficiaries and the former trustees of the RLM Trust.

RE MACALISTER [2021] NZHC 3572 [20 December 2021]

Background

[2] The Blackwood Bay property is in the Marlborough Sounds. It was acquired in about 1920 by Sir Robert Lachlan Macalister. He bequeathed the Property to his two sons, Alister and Ian, with the express wish that the Property be maintained for the benefit of future generations of the Macalister family.

[3] Alister (second generation) and his wife Shirley had five sons, John, Richard, Philip, Andrew and Robert (third generation). The adult grandchildren of Alistair are (fourth generation): Monique, Robert and Stuart (children of Richard); Jamie, Scott and Andrew (children of Philip) and Louis (son of Andrew). The minor grandchildren of Alistair (also fourth generation) are: Vincent and Leila (children of Andrew); and Jack and George (children of Robert). John has no children.

[4] Ian (second generation) and his wife June had three children, Janet, Graeme, and Donald. There are no grandchildren.

[5] The RLM Trust was settled by Shirley and June by Deed of Trust dated 7 December 2011. The original trustees were Richard, Andrew and Graeme. The Blackwood Bay property was transferred to the Trust with the intention that it be retained and maintained for the benefit and enjoyment of all lineal descendants of Sir Robert.

[6] In 2020 a dispute arose arising out of a proposed sale of the Blackwood Bay property to Richard. Philip, supported by John, brought proceedings against the trustees concerning the proposed sale. John brought a related proceeding for the removal of Andrew as trustee.

[7] The proceedings were scheduled for hearing beginning 2 August 2021. The hearing did not commence because the parties were in settlement discussions. The discussions were fruitful and the Deed of Settlement was entered into later that day. It was executed by all the adult beneficiaries of the RLM Trust over the next few days.

[8]The settlement:

(a)enabled Richard to purchase the Blackwood Bay property with other members…

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 Macalister

Details

AGLC: Re Macalister [2021] NZHC 3572
Case: [2021] NZHC 3572
Decision Date: 20 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Graeme MacDonald Macalister, Andrew Charles Macalister, and Robert Blair Macalister, as trustees of the Robert Lachlan Macalister Trust, sought approval to amend the trust deed and direct the sale of the trust property. The applicants sought these orders in accordance with a Deed of Settlement that brought an end to litigation between some of the beneficiaries and the former trustees of the trust. The legal issues involved determining whether the court could approve the variation of the trust deed and whether the trustees had the power to sell the trust property and distribute the proceeds. The court found that the trustees could properly form the views they had reached and that the proposed actions were a result of a carefully negotiated compromise, intended to be fair to all. The court also found that the sale of the trust property and the capital distributions were proper and lawful. The court approved the variation of the trust deed and directed the trustees to sell the trust property and distribute the proceeds in accordance with the Deed of Settlement.

The orders of the court were that the addition of a clause 5.3 to the Deed of Trust of the RLM Trust is approved on behalf of the minor beneficiaries. The trustees of the RLM Trust are directed to sell the RLM Trust property located at Blackwood Bay to Richard FitzGerald Macalister on the terms stipulated in clause 4.1 of the Deed of Settlement dated 2 August 2021, distribute the proceeds of the sale in the manner stipulated in clause 4.2 of the Deed of Settlement dated 2 August 2021, and distribute the residue of the RLM Trust in the manner stipulated in clause 7.1 of the Deed of Settlement dated 2 August 2021. The costs of the application are to be met from the funds of the RLM Trust. This has been agreed to in the Deed of Settlement.

Orders