Seabrook v Draiocht Trust Partnership Limited
[2019] NZHC 3117
•28 November 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-0998
[2019] NZHC 3117
IN THE MATTER of an application for specific performance and/or an application under the Property Law Act 2007 BETWEEN
TIMOTHY JOHN SEABROOK and ADNAMIRA FAMILY TRUSTEE
LIMITED as trustees of the Rod Wilson Trust
Plaintiffs
AND
DRAIOCHT TRUST PARTNERSHIP LIMITED and NIKOLA GILMOUR
WILSON as trustees of the Nicola Wilson Trust
Defendants
Hearing:
Further submissions:
14 October 2019
1 November 2019 and 4 November 2019
Appearances:
NW Woods for the Plaintiffs DM Law for the Defendants
Judgment:
28 November 2019
JUDGMENT OF ASSOCIATE JUDGE SMITH
This judgment was delivered by me on 28 November 2019 at 11am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors / Counsel:
Rice Craig, Auckland
Law & Associates, Auckland
SEABROOK v DRAIOCHT TRUST PARTNERSHIP LTD [2019] NZHC 3117 [28 November 2019]
The parties and the application
[1] The plaintiffs are the trustees of a trust called the Rod Wilson Trust. I will refer to the Rod Wilson Trust in this judgment as the "RWT".
[2] The defendants are the trustees of a trust known as the Nicola Wilson Trust. I will refer to that trust as the "NWT".
[3] The principal beneficiary of the RWT is Mr Roderick David Wilson (Roderick), and the principal beneficiary of the NWT is Nikola Gilmour Delphinus (formerly Nicola Wilson) (Nikola). Roderick and Nikola are the only children of the late David Hector Wilson and the late Audrey Estelle Wilson, who died in 2012 (David) and 2014 (Audrey).
[4] David had settled the RWT on 22 March 1990. On the same date Audrey settled the NWT.
[5] The RWT and the NWT own a property at Mill Road, Alfriston (the property), as tenants in common in equal shares. The property is a 4.578 ha "lifestyle" block, with a large dwelling that was rebuilt following a fire in 2006, and rural surrounds. The dwelling includes a self-contained flat, presently occupied by a friend of Nikola. The property is understood to be worth somewhere in the vicinity of $2 million.
[6] Following the deaths of David and Audrey, a dispute has arisen over whether the property should be sold. Nikola and her family presently reside on the property, paying outgoings (except insurance) and maintenance but no rent. Nikola and the NWT say that it was the wish of David and Audrey that Nikola and her two children should be permitted to remain living on the property, rent-free, until Nikola's youngest child Aubrey completed his tertiary education. Aubrey is now 19 years old, and in his first year of a four-year engineering degree course.
[7] Roderick and the RWT seek an order for the sale of the property. They contend that the NWT is bound by the terms of a draft deed of settlement that the NWT accepted in June 2017, under which the property would be put on the market for sale
in January/February 2018. The NWT denies that any binding agreement was reached for the sale of the property.
[8] The parties could not resolve the dispute, and the RWT commenced the present proceeding in May 2019. The RWT seeks an order for specific performance of the alleged agreement to sell. In the alternative, it seeks orders under ss 339 and 343 of the Property Law Act 2007 (the PLA) for the sale of the property and the distribution of the proceeds. As the RWT considers that the NWT has no defence to its claims, it has applied for summary judgment. The summary judgment application is opposed by the NWT.
[9]I now give judgment on the summary judgment application.
Background
The partnership between the trusts
[10] The property was transferred to the two trusts over 25 years ago, and it is still controlled by the two trusts. A partnership was formed between the two trusts, but it appears there was no partnership deed or other written partnership agreement. Financial statements for the partnership for the year ended 31 March 2014 show that income was derived from dividends and interest, with some (unspecified) overseas income. The partnership business accordingly appears to have been as an investor.
David and Audrey's wills
[11] David's and Audrey's last wills, both made on 20 September 2011, contained the following provisions relating to the two trusts.
[12]Audrey's will:
6I acknowledge that the power of appointment of new trustees vested in me pursuant to clause 18 of the Deed of Trust for [the NWT] shall be vested in and exercised by [Nikola], following distribution of my estate, and I express the wish that [Nikola] should appoint herself as an additional trustee thereof.
I direct in so far as I am able and I express the wish:
5(b) that the trustees for the time being of [the NWT] as aforesaid permit [Nikola], [my granddaughter] and [Aubrey] to occupy [the property] for such period as those trustees deem necessary to enable [Aubrey] to complete tertiary education.
[13]David's will:
5. I DIRECT insofar as I am able and express the wish:
(a)That during the life-time of [Audrey] the Trustees of [the RWT] should regard [Audrey] as the primary beneficiary thereof, so as to ensure that she maintains a reasonable standard of living and that if necessary she receives the very best of medical care, and that her needs and wishes are provided for ahead of those of any other beneficiary thereof.
(b)That the Trustees for the time being of [the RWT] permit [Nikola], [my granddaughter] and [AUBREY] to occupy [the property] for such period as those Trustees deem necessary to enable my [AUBREY] to complete tertiary education.
(c)That any payments, benefits or advantages to be received by my children as beneficiaries of [the RWT] should be received by them in equal shares, unless there is some compelling reason in the opinion of my trustees why my children should not be treated equally.
5. I ACKNOWLEDGE that the power of appointment of new trustees vested in me pursuant to clause 18 of the Deed of Trust for [the RWT] shall be vested in and exercised by [Roderick], following distribution of my estate, and I express the wish that [Roderick] should appoint himself as an additional trustee thereof.
Difficulties between Roderick and Nikola
[14] When Audrey died, her grandson Aubrey was only 13. Any tertiary education would be some years away, and in the meantime the RWT would see no return on its interest in the property.
[15] At the time of Audrey's death, the sole trustee of the two trusts was a friend of David, Mr Patrick Leonard. Although Roderick attempted to get Nikola to sign a rental agreement and pay a market rent in exchange for her living in the property with her family after Audrey's death, Nikola and Mr Leonard both resisted the idea. Mr Leonard said in his evidence that his concern was to respect the wish of both David and Audrey that the property should continue to provide a home for Nikola and her children until Aubrey completed his tertiary education.
[16] It appears that there was not much communication between the parties from September 2014 until about March 2017, other than communications over a dispute that arose between Roderick and Nikola relating to the repayment of an overdraft facility of $25,000 taken out by the NWT shortly after Audrey's death to meet partnership costs and funeral expenses. Nikola said in her evidence that Roderick initially agreed that the partnership should reimburse the NWT with these funds, but he later demanded that there should be a "rebalancing" in favour of the RWT.
The alleged settlement
[17] On 1 May 2017 the RWT made a settlement offer, under which the NWT would continue to occupy the property for one year, receiving all income derived from it. After that, the property would be sold. A process to resolve disputes over the partnership assets was put forward. If no settlement could be achieved, the RWT would commence a Court proceeding.
[18] Nikola responded on 8 May 2017, advising that she would consider the offer. When no response was received by 6 June 2017, the RWT's solicitors wrote to the lawyers then thought to be acting for the NWT. Nikola replied two days later, advising that those solicitors were no longer acting. She went on to say:
I wanted to discuss with Roderick the option of putting the property on the market in Jan/February 2018 as this was a much more pleasant time for prospective buyers to be viewing the property than May 2018. My thoughts were to prepare the property over the December period.
My son completes his secondary education at the end of this year, so I would like to remain in the house until the end of his exams and until my daughter completes her thesis on 1st March 2018.
In light of Dad's and Mum's Wills, I do not feel that rent payable to this date is appropriate given I am willing to bring forward the sale date.
I agree that it seems appropriate for the partnership to be wound up at the time of sale. It seemed more appropriate the partnership meet the cost of any valuation. It seems more appropriate that a neutral solicitor undertakes the conveyancing of the sale.
[19] Nikola concluded her letter of 8 June 2017 by expressing the wish that the information in her letter would provide the RWT's solicitors with a "positive way forward for us to come to a fair and reasonable solution …".
[20] On 27 June 2017, the solicitors for the RWT wrote to Nikola purporting to accept all of her amended conditions. They said:
We advise that our client accepts your counter-offer. Accordingly, there is now a final and binding agreement in principle between the parties.
[21] On 10 July 2017, the RWT's solicitors sent a form of deed of settlement to Nikola for execution. Despite numerous demands for execution by the solicitors acting for the RWT, the deed has never been executed by the NWT or Nikola.
[22] Broadly, the RWT contends that Nikola was negotiating as agent of the NWT, and that her letter of 8 June 2017 constituted a binding offer that was capable of immediate acceptance to form a valid contract. The RWT says that some requests were made by the NWT's lawyers for amendments to the draft deed, and a final and amended deed, including all the adjustments requested by the NWT's lawyers, was submitted to them on 8 August 2018. Further demands for execution of the deed were made on behalf of the RWT on 22 May 2018, 8 June 2018, and 28 June 2018, but the document was never signed.
Procedural issue – failure to serve the mortgagee
[23] On reviewing the file after the hearing, I noted that there was no proof of service of the application on the mortgagee, Westpac New Zealand Ltd. On 30 October 2019 I issued a Minute, pointing out that s 339(2)(c) of the PLA requires service in accordance with s 341, and that s 341(2)(c) requires that an application under s 339 be served on any person claiming to be a party to or entitled to a benefit under an instrument relating to the property.1 I noted that neither party had raised the issue of service on Westpac, and I raised the issue of whether Westpac could be adversely affected by the application. I noted that the Court had to be satisfied either that Westpac had been served, or that an order should be made dispensing with service under s 341(3). I invited counsel to file memoranda addressing those issues.
1 Subject to the Court’s ability to dispense with service under s 341(3), s341(2)(b) also requires service on any party who has an estate or interest in the property affected by the application.
[24] Mr Woods confirmed in his memorandum that Westpac had not been served. Full copies of the proceedings were emailed to Westpac on 31 October 2019.
[25] Mr Woods attached a copy of an email response from a Westpac commercial manager, dated 1 November 2019. The commercial manager said:
“… we are just checking our resultant security position/debt and will confirm back to you.
However, in the interim, I can advise …
At this stage we have no concerns regarding the sale of the property as you have outlined in your email. So long as there is an understanding/undertaking that the bank’s interests are protected and we will not be looking to be heard on the applications”.
[26] Mr Woods advised that formal confirmation of Westpac’s position was expected to be received in the week commencing 3 November 2019. In the meantime, he submitted that Westpac could not be adversely affected by the relief sought, and it should be treated as having been sufficiently served.
[27] In her memorandum, Ms Law submitted that service on the mortgagee was a mandatory requirement under s 341(2), and the failure to effect service is fatal to the application insofar as it relies on s 339 of the PLA. She also submitted that Mr Leonard, who remains on the title to the property as a registered proprietor, should have been served but was not. She objected to the purported service on Westpac some two weeks after the hearing, and she objected to the RWT purporting to give “evidence” about Westpac’s position after the hearing, without having obtained leave to do so.
[28] Ms Law also drew attention to the fact that the property is security for significant borrowings by Mr Wilson and/or the RWT, and that no evidence has been adduced as to what the bank’s requirements might be in the event of a sale, or what impact that might have, if any, on the NWT’s interest in the property. She submitted that the RWT could not properly seek to adduce evidence on these matters after the hearing, and without affording the NWT opportunity to consider any prejudice that might arise.
[29] In a reply memorandum, Mr Woods submitted that there was “no real controversy” that Westpac would:
(a)require the NWT to repay the $30,000 overdraft from the net proceeds of sale; and
(b)assess the adequacy of collateral securities in determining whether or not to require any of the net proceeds due to the RWT and, if so, how much at the time the sale is effected.
[30] Mr Woods indicated that he expected the Westpac Legal Section to file a memorandum, independently confirming the position, during the week commencing 4 November 2019. No such memorandum has been received.
Plaintiff's applications for summary judgment — legal principles
[31]Rule 12.2(1) of the High Court Rules 2016 provides:
12.2 Judgment when there is no defence or when no cause of action can succeed
(1) The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
…
[32] The principles on which the Courts deal with summary judgment applications were summarised by the Court of Appeal in Krukziener v Hanover Finance Ltd as follows:2
The principles are well settled. The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried: Pemberton v Chappell [1987] 1 NZLR 1 (CA) at 3. The court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated MacLean v Stewart (1997) 11 PRNZ 66 (CA). The court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in
2 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307.
credibility, as, for example, where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent, or is inherently improbable: Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at
341. In the end the court's assessment of the evidence is a matter of judgment. The court may take a robust and realistic approach where the facts warrant it: Bilbie Dymock Corp Ltd v Patel (1987) 1 PRNZ 84 (CA).
[33] The summary judgment procedure is available for claims for specific performance, and also for claims for relief under s 339 of the PLA.
[34] Where a summary judgment application seeks an order for specific performance, the Court needs to take special care. That is because issues relevant to the exercise of the Court's discretion to order specific performance of a contract of land may well be different or additional to those bearing on whether a defendant has an arguable defence as regards liability.3
[35] The Court of Appeal has also recognised that the summary judgment procedure may not be well suited to s 339 applications, because relief under s 339 is discretionary and in most cases the Court is required to weigh a number of factual considerations in coming to its decision.4 But as Edwards J noted in Phillipps v Phillipps, this Court has on a number of occasions entered summary judgment on applications under s 339.5 The essential point appears to be that, for the Court to grant summary judgment on a s 339 application, the evidence must be such that there is only one possible outcome. Although the relief sought is in the discretion of the Court, the plaintiff may yet succeed if he or she can effectively negate all possible outcomes except the outcome sought in the statement of claim.6
The issues
[36]Counsel’s submissions raised six issues for determination:
(1)Is it clear that the NWT is bound by the alleged deed of settlement?
3 Hart v Bankfield Farm Ltd (2008) 9 NZCPR 685 (HC) at [39].
4 Bayly v Hicks [2012] NZCA 589, [2013] 2 NZLR 401 at [31].
5 Phillipps v Phillipps [2019] NZHC 15, referring (inter alia) to the judgment of Associate Judge Bell in Carey-Venable v Carey [2016] NZHC 2646. See also Coffey v Coffey [2012] NZHC 1765; Ramsey v Mercer [2013] NZHC 2659; and Webster v Ren [2017] NZHC 479.
6 Carey-Venable v Carey, above n 5, at [6].
(2)If the answer to Issue (1) is yes, is it clear that the RWT is entitled to specific performance of the deed of settlement?
(3)Is the only possible outcome of the application under s 339 of the PLA that an order should be made for the sale of the property?
(4)If the answer to Issue (3) is yes, what orders should the Court make?
(5)Does Roderick's supporting affidavit sufficiently:
(a)verify the allegations in the statement of claim?
(b)state that the trustees of the RWT believe that the NWT has no defence to the claim?
(6)Should summary judgment be refused because Nikola intends to apply for relief under s 68 of the Trustee Act 1956 on the basis that, in issuing this proceeding, the trustees of the RWT have not had proper regard to the wishes of David as expressed in his last will?
[37]I will deal with the issues in turn.
Issues (1) and (2) —
Is it clear that the NWT is bound by the alleged deed of settlement?
If the answer to Issue (1) is yes, is it clear that the RWT is entitled to specific performance of the deed of settlement?
[38] I have little difficulty concluding that the answer to Issue (1) is "no" — it is not at all clear that the NWT is bound by the alleged deed of settlement. I reach that view for three fundamental reasons: Nikola appears to have lacked authority to bind the NWT, the parties arguably did not intend to be bound until a formal deed of settlement was executed, and the draft Deed of Settlement submitted by the RWT added new terms that had not been agreed by either Nikola or the NWT.
[39] On the authority issue, Nikola was not a trustee of the NWT at the time (June 2017) the binding agreement is said to have been made, and it appears that she did not have authority to enter into the alleged deed of settlement on behalf of the NWT. The sole trustee at the time was Mr Leonard, and it seems clear from his evidence that he made no agreement on behalf of the NWT of the kind now alleged by the RWT, and he did not authorise Nikola to make any such agreement.7 Nikola also said in her evidence that her email of 8 June 2017, relied upon by the RWT as concluding a "binding agreement in principle", was sent without Mr Leonard's knowledge or consent. It is therefore not established, to summary judgment standard, that Nikola had actual or implied authority from Mr Leonard to enter into the alleged deed of settlement on behalf of the NWT.
[40] Mr Woods submitted that Nikola had apparent, or ostensible, authority to bind the NWT, but to establish ostensible authority the agent must be held out as having authority to enter into a transaction of the kind made, and that "holding out" must be done by the alleged principal, or at least by someone with actual authority. The third party (in this case the RWT) must have known of the principal's holding out and relied on it, and that reliance must have been reasonable. The onus of proof is on the party alleging ostensible authority.8
[41] In this case, there is no evidence that Mr Leonard ever held out Nikola, or the solicitors acting for her, as having authority to bind the NWT. Indeed, the evidence appears to be to the opposite effect — he apparently had no relevant contact with the trustees of the RWT (or their agents) during the relevant period.
[42] The second fundamental problem facing the RWT is that one of the prerequisites to the formation of a valid contract is that the parties must have intended to be bound. If the parties' intention in their negotiations was that neither party would
7 Mr Leonard said in his affidavit:
15. I formally resigned as a trustee of the NWT on 17 August 2017. During the period I was a trustee I did not make or receive any proposals to settle what effectively was a dispute between the 2 trusts. Accordingly, the NWT, during my tenure as trustee, never agreed to vacate the Property and never agreed that the wishes of the settlors would not be complied with. If agreement had been reached by both Nikola and Roderick, then I would have given consideration to whether that was appropriate. It did not get to that point.
8 Bishop Warden Property Holdings Ltd v Autumn Tree Ltd [2018] NZCA 285, [2018] NZLR 809, at [30].
be bound until a formal document recording their agreement was completed and signed, there will be no valid contract until that occurs.
[43] In determining whether the parties intended to be bound before a formal agreement was signed, the Court can look at the words of the alleged agreement, the background facts (including statements made by the parties in the course of the negotiations, and any draft contract terms), and the parties' conduct after the contract is said to have been made.9
[44] In this case, it is clearly arguable for the NWT that Nikola's email of 8 June 2017 was not intended to be an offer that would be capable of immediate acceptance, so as to bind the NWT. First, the initial proposal put forward by the RWT on 1 May 2017 stated that if the RWT's proposal was acceptable in principle it would be conditional upon an appropriately worded Deed of Settlement being executed by the parties. In my view that condition formed the "backdrop" to the negotiations that followed, the use of the words "in principle" signalling a clear intention that neither side would be bound until the appropriate Deed of Settlement had been executed. Secondly, the terms of Nikola's email of 8 June 2017 ("I wanted to discuss with Roderick …", and Nikola's wish expressed in the email that the RWT's solicitors would see in the "information" provided in the letter "a positive way forward for us to come to a fair and reasonable solution …") are not the language of a party who expected and intended that her correspondence would create legal rights and obligations if accepted, without any more formal document. Thirdly, the letter from RWT's solicitors dated 27 June 2017 which is said to have constituted an acceptance of Nikola's 8 June 2017 "offer", declared only that there was "now a final and binding agreement in principle" between the parties. It was not made clear how or why an agreement in principle (if there was one), which the 27 June 2017 letter made clear would be superceded by an "appropriately worded Deed of Settlement", somehow became elevated to the status of a binding contract.
9 Reading Entertainment Australia Pty Ltd v AMP Capital Shopping Centres Pty Ltd [2017] NZHC 2337 at [75] – [76], referring to Fletcher Challenge Energy Ltd v Electricity Corporation of New Zealand [2002] 2 NZLR 433 (CA).
[45] Furthermore, any contract that involved a transfer of a substantial interest in land would not normally be regarded as having been intended by the parties to bind them before a formal document, including all necessary terms, was drawn up and signed.
[46] I conclude that it is by no means clear that there was any intention that the NWT would be bound before a formal deed of settlement was executed by both trusts.
[47] The third fundamental reason for declining summary judgment on the specific performance claim, is that there was arguably no "meeting of minds" between the trusts on all contract terms. Ms Law noted that there were additional terms added in the draft deed of settlement that were never agreed to by the NWT, including a requirement that the NWT pay the costs of and related to obtaining a registered valuation of the property, and a provision that in the event of default by the NWT: (i) penalty interest would be charged on the market value of the property at 10 per cent per annum running from the date of breach until the giving of vacant possession; and
(ii) the NWT would be liable for full solicitor/client costs incurred by the RWT in enforcing the breach.
[48] Having regard to all of those factors, I conclude that the answer to Issue (1) is "no". That being the answer to Issue (1), there is no need to consider Issue (2).
Issue 3 — Is the only possible outcome of the application under s 339 of the PLA that an order should be made for the sale of the property?
Relevant provisions of the Property Law Act 2007
[49]Sections 339, 341 and 342 of the PLA materially provide:
339 Court may order division of property
(1)A court may make, in respect of property owned by co-owners, an order—
(a)for the sale of the property and the division of the proceeds among the co-owners; or
…
(2)An order under subsection (1) (and any related order under subsection (4)) may be made—
…
(c)only on an application made and served in the manner required by or under section 341; and
(d)only after having regard to the matters specified in section 342.
…
(4)A court making an order under subsection (1) may, in addition, make a further order specified in section 343.
…
341Application for order under section 339(1)
(1)An application for an order under section 339(1) (and for any related order under section 339(4)) may be made by all or any of the following people:
(a)a co-owner of any property:
…
(2)Every person who is one of the following must, if not already a party to the proceeding on that application, be served with a copy of that application:
(a)a co-owner of the property:
(b)a person who has an estate or interest in the property that may be affected by the granting of the application:
(c)a person claiming to be a party to, or entitled to a benefit under, an instrument relating to the property.
(3)The court to which that application is made may, by order made on an application for the purpose, change, or dispense with service on, the people who must be served under subsection (2).
342Relevant considerations
A court considering whether to make an order under section 339(1) (and any related order under section 339(4)) must have regard to the following:
…
(d)the hardship that would be caused to the applicant by the refusal of the order, in comparison with the hardship that would be caused to any other person by the making of the order:
(e)the value of any contribution made by any co-owner to the cost of improvements to, or the maintenance of, the property:
(f)any other matters the court considers relevant.
[50] For the RWT to succeed on its summary judgment application for a sale order, it must clearly negate all other possible outcomes.10
10 Carey-Venable v Carey, above n 5; followed in Phillipps v Phillipps, above n 5.
Insufficient evidence about the Westpac mortgage
[51] Service on the mortgagee in accordance with s 341 is mandatory unless the Court makes an order dispensing with service, and I am satisfied that it would not be appropriate to make a (retrospective) dispensing order in this case, or to permit further evidence to be adduced on the extent of the Westpac debt that is secured over the property, and the extent to which Westpac might require payment of that debt if the property is sold.
[52] Roderick said in his first affidavit that the most recent rateable value of the property was $2,250,000. He estimated that the property could be sold for at least
$2 million if not $3 million and expressed the view that it could be assumed that in the event of a sale and a dissolution of the partnership, the NWT would have a sum in the order of $1 million with which to purchase an adequate replacement property in which Nikola and her family could reside. But that figure must be dependent on how much Westpac would require to release its security over the property: if Westpac were to require substantially more than Roderick has anticipated, there would presumably be substantially less than $1 million available to the NWT from a sale. How much less cannot be estimated without knowing how much of the Roderick/RWT borrowings would have to be repaid to Westpac on a sale, and there is no evidence about that – Mr Woods acknowledged in his reply memorandum that Westpac will need to assess its security position at the time of any sale.
[53] Under s 342(d) of the PLA, the court must consider the hardship that would be caused to any other person if a sale order were made, and I do not think that can be adequately done on the evidence that has been produced, at least in respect of possible hardship to Nikola and her family. Any inability of the NWT to fund a suitable replacement home for Nikola and her family if the property were sold could arguably create hardship for them, and with no evidence of how much would be available to the parties from the sale of the property I do not think it can be said that the RWT has clearly negated all options other than an immediate sale of the property. The summary judgment procedure may be suitable for a limited number of s 339 applications, but I am not satisfied that this is one of them. I conclude that the summary judgment application must fail to the extent relief is sought under s 339 of the PLA.
Issue (4) — If the answer to Issue (3) is yes, what orders should the Court make?
[54] In view of the decision I have reached on Issue (3), there is no need to answer this question.
Issue (5) — Does Roderick's supporting affidavit sufficiently: (a) verify the allegations in the statement of claim? (b) state that the trustees of the RWT believe that the NWT has no defence to the claim?
[55] In the view to which I have come on Issues (1) and (3), it is not necessary to answer these questions.
Issue (6) — Should summary judgment be refused because Nikola intends to apply for relief under s 68 of the Trustee Act 1956 on the basis that, in issuing this proceeding, the trustees of the RWT have not had proper regard to the wishes of David as expressed in his last will?
[56] Again, my conclusions on Issues (1) and (3) mean that there is no need to address this Issue.
Result
[57]I make the following orders:
(1)The application for summary judgment is dismissed. In accordance with the usual practice where a plaintiff’s application for summary judgment is dismissed, costs are reserved.
Associate Judge Smith
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