Roberts v Roberts
[2020] NZHC 2335
•8 September 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-409
[2020] NZHC 2335
UNDER the Trustee Act 1956 BETWEEN
JESSICA CAROLINE ROBERTS
Plaintiff
AND
JESSICA CAROLINE ROBERTS and HUGH RICHARD SYDNEY ROBERTS, as
trustees of the Hackthorne Family Trust Defendants
Hearing: Determined on the papers Counsel:
K L Maclean and M J Wallace for Plaintiff
Judgment:
8 September 2020
JUDGMENT OF ASSOCIATE JUDGE LESTER
(Directions as to service and representation)
This judgment was delivered by me on 8 September 2020 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 8 September 2020
ROBERTS v ROBERTS [2020] NZHC 2335 [8 September 2020]
[1] This proceeding concerns the Hackthorne Family Trust (HFT). The plaintiff, Jessica Roberts (Ms Roberts), and her co-trustee, Hugh Roberts (Mr Roberts) had been married but are now separated. They were the settlors of the HFT.
[2] Unfortunately, it appears from Ms Roberts’ affidavit that differences have arisen between her and Mr Roberts as to the administration of the HFT.
[3] In Ms Roberts’ statement of claim, she seeks orders requiring Mr Roberts to disclose to her source documents relating to various trust transactions of concern to her, and the appointment of an independent trustee, or, in the alternative to the appointment of an independent trustee, directions as to the sale of the properties held by the HFT in order to reduce debt.
[4] Given it appears from Ms Roberts’ affidavit that the trustees are unable to communicate openly about HFT matters, if that is correct, the present situation cannot continue.
[5] The beneficiaries of the HFT are Ms Roberts and Mr Roberts, together with Mr Roberts’ three children to his former wife, and the three children of Ms Roberts and Mr Roberts. Of Mr Roberts’ three children to his former wife, two are adult and one is a minor. All three children of Mr Roberts and Ms Roberts are minors.
[6] An order is appropriately sought that Mr Roberts and his two adult children be served and there is an order accordingly. Ms Roberts also suggests that Mr Roberts can adequately represent the interests of his minor daughter and I agree. There is an order that Mr Roberts is to represent the interests of Deirbhile Margaret Arohanui Roberts.
[7] Ms Roberts also suggests that both she and Mr Roberts, as parents of their three minor children, can adequately and fairly represent their interests. I have no reason to believe that Mr Roberts and Ms Roberts do not want to act in the best interests of their children, however, I have a lingering concern that the state of their relationship is such that appointing both of them to represent the interests of their children has the
potential to become a point of contention. That needs to be judged against the matters in issue in the proceeding.
[8] Ms Roberts’ application for the disclosure of source documentation is really only relevant to her position as trustee and does not require input on behalf of the minor children.
[9] Nor, could the appointment of an independent trustee of itself adversely affect the minor children, given such would be neutral to the assets in the HFT.
[10] The potential sale of properties that may have family significance is potentially a different matter, but again, ultimately is a trustee decision.
[11] Accordingly, I am prepared to appoint both Mr Roberts and Ms Roberts to represent the interests of Lavinia Roberts, Daphne Roberts and Larunda Roberts, and there is an order accordingly. I reserve leave to Ms Roberts to apply to have that direction amended should the joint appointment create issues in the case management of this proceeding.
[12] Finally, I note the application for directions was not accompanied by a memorandum of counsel. The Court is always assisted by such a memorandum, even if counsel consider the application is straightforward.
Associate Judge Lester
Solicitors:
Sidekick Legal, Christchurch
Copy to counsel:
M J Wallace, Barrister, Christchurch
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