Ruscoe v Perry - [2022] NZHC 1164

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-726

[2022] NZHC 1164

UNDER Part 19 of the High Court Rules and section 284 of the Companies Act 1993

IN THE MATTER

of Taratahi Agricultural Training Centre (Wairarapa) Trust Board (In Liquidation)

BETWEEN

DAVID IAN RUSCOE and MALCOLM

RUSSELL MOORE acting as liquidators of Taratahi Agricultural Training Centre

(Wairarapa) Trust Board (In Liquidation) Applicants

AND

PHILLIDA PERRY

First Respondent

ATTORNEY-GENERAL

Second Respondent

Hearing: 7 October 2021

Counsel:

J C Caird, D J Laing and S L Hawksworth for Applicants A A H Low for First Respondent

A S Butler and E M Jamieson for Second Respondent

Judgment:

25 May 2022

Reissued:

6 July 2022

JUDGMENT OF ELLIS J

Table of Contents
Paragraph

The liquidators’ originating application [9]

Was and is the Taratahi land held on express trust? [14]

RUSCOE and MOORE v PERRY [2022] NZHC 1164 [25 May 2022]

Historical context  [16]
Impetus for the 1969 Act  [36]
The 1969 Act  [45]
Was an express trust created in 1918?  [58]
Did the 1969 Act change this position?  [62]
Answer  [66]

Does the 1969 Act permit the Taratahi land to be sold? [67]

Answer [76]

Is the Taratahi land subject to pt 3 of the PWA and the GLP? [77]

The disposal processes under the PWA and the GLP [79]

The different potential starting points [89]

Discussion [92]

Answer [99]

Should the orders sought by the liquidators be made? [100]

Costs [102]

Apology [103]

[1] Towards the end of the Great War, Corran Perry returned to his family in New Zealand from the battlefront in France, wounded and shell-shocked. Moved by the plight of his son and others like him, Mr (later, Sir) William Perry put into action an idea that he had been harbouring for some time: a training farm to help returned servicemen re-establish themselves and to assist more generally in promoting modern farming practices in the Wairarapa.

[2] To that end, in November 1918 Mrs (later, Lady) Margaret Perry (Mr Perry’s wife) gifted approximately 329 acres of land (sections 51 and 59 of the Taratahi Plain Block) in the Wairarapa to the Crown. At about the same time, an adjacent area of land (sections 55–58 of the Taratahi Plain Block, comprising some 409 acres) was transferred by Mrs Ivelenah Rayner (who had earlier purchased it from the Perrys) to

the Crown for consideration of £9,005.11.3d, an amount that was funded through substantial donations made by a number of Wairarapa residents.1

[3] A short time later, the Wairarapa Cadet Training Farm (the training farm) was established on these lands (referred to in the remainder of this judgment as the Taratahi land). The stock initially farmed on the training farm was also gifted by Wairarapa residents. Funding for buildings, fences and ancillary items was provided by the Crown.

[4] Initially, the training farm (and the Taratahi land) was controlled and managed by a Committee appointed by the Minister of Agriculture. But…

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 Ruscoe v Perry

Details

AGLC: Ruscoe v Perry [2022] NZHC 1164
Case: [2022] NZHC 1164
Decision Date: 25 May 2022

CaseChat Overview and Summary

This case concerns the Taratahi Agricultural Training Centre, which was established on land gifted to the Crown for the purposes of agricultural training. The Trust Board managing the Centre was placed into liquidation. The liquidators sought orders to sell the land, the last remaining asset of significant value, to pay creditors and cover liquidation costs. The first respondents, representing the descendants of the original donors, opposed the application, arguing that the land is held on trust for the Crown and cannot be sold. The High Court was required to determine whether the Taratahi land was held on trust, whether the 1969 Act permitted its sale, and whether the land was subject to the Public Works Act 1981 and the Gifted Land Policy. The Court found that the land was held on an express charitable trust for educational purposes, but the 1969 Act did not alter this position. The land could be sold if the sale was consistent with the trusts and the Minister lawfully approved it. The Court also found that the land was subject to the Public Works Act and the Gifted Land Policy if it was surplus to the requirements of the 1969 Act. The Court made orders that a sale of the land was lawful if the Minister consented, and that the land was not subject to the Public Works Act and the Gifted Land Policy if the Minister lawfully approved the sale. However, if the Minister could not lawfully approve the sale and the land was surplus, the Public Works Act and the Gifted Land Policy processes might apply. Costs were to lie where they fell.

Orders