Sellers v Sellers - [2019] NZHC 1372

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-420

[2019] NZHC 1372

UNDER
Part 18 of the High Court Rules, section 51 of the Trustee Act 1956 and the inherent

jurisdiction of the High Court to supervise trusts

IN THE MATTER OF

The SELLERS FAMILY TRUST

BETWEEN

GUY EDWARDS STUART SELLERS

Plaintiff

AND

CORINNE SELLERS

Defendant

Hearing: 17 June 2019

Appearances:

A A M Newfield for the Plaintiff No appearance for the Defendant

Judgment:

17 June 2019

REASONS FOR JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

Preliminary

At the close of the hearing of the plaintiff’s application for summary judgment, the Court entered judgment in terms of paragraph 1(a) to (d) of the application dated 11 March 2019. The reasons for this judgment follow, with further orders.

SELLERS v SELLERS [2019] NZHC 1372 [17 June 2019].

Introduction

[1] The plaintiff (Mr Sellers) and the defendant (Mrs Sellers) married on 20 November 2006. On 12 January 2009 they settled the Sellers Family Trust (“the Trust”). In August 2012 the Trust bought a property at Oratia in which Mr and Mrs Sellers lived until they separated on 24 June 2017. Since that time, Mrs Sellers has lived in the property. The relationship between Mr and Mrs Sellers is acrimonious, is the subject of proceedings in the Family Court, and is the basis of the current application.

[2]Mr Sellers applies for the following orders by way of summary judgment:

(a)an order removing the plaintiff and the defendant as trustees of the Sellers Family Trust;

(b)an order appointing Sellers Family Independent Trustee Company Ltd as trustee of the Trust;

(c)an order vesting the property at 507 West Coast Rd, Oratia comprised within Certificate of Title NA32D/975 in Sellers Family Independent Trustee Company Ltd as trustee of the Trust;

(d)an order that Sellers Family Independent Trustee Company Ltd’s reasonable fees be met from the Trust fund;

(e)costs.

[3] Further orders are sought in the substantive proceeding in relation to Trust funds said to have been taken by Mrs Sellers in breach of her duties, an enquiry into damages, and orders in relation to whether Mrs Sellers is entitled to an indemnity for costs from Trust assets. These issues are not the subject of Mr Sellers’ application for summary judgment.

Mrs Sellers involvement in this proceeding

[4] Mr Sellers’ application for summary judgment and supporting documents were served on Mrs Sellers on 27 March 2019. Mrs Sellers did not file a notice of opposition but appeared in person when the case was called on its allocated first call day. She informed the presiding Judge that she would like to file a notice of opposition and could do so within a week. The Judge made timetabling directions requiring her to take these steps by 14 May 2019. The Judge set the case down for hearing on 17 June 2019.1

[5] Mrs Sellers did not comply with the deadline, but instead requested an extension of time. This was served on…

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 Sellers v Sellers

Details

AGLC: Sellers v Sellers [2019] NZHC 1372
Case: [2019] NZHC 1372
Decision Date: 17 June 2019

CaseChat Overview and Summary

In Sellers v Sellers, Guy Edwards Stuart Sellers (the plaintiff) sought summary judgment against Corinne Sellers (the defendant) in relation to the Sellers Family Trust. The plaintiff and defendant were married and had settled the trust in January 2009, buying a property in Oratia in August 2012. The plaintiff applied for several orders including his removal as a trustee, the appointment of Sellers Family Independent Trustee Company Ltd as trustee, and vesting of the Oratia property in the proposed trustee. The plaintiff claimed that the defendant had breached her duties as a trustee by living in the Oratia property against his wishes, subletting rooms without his consent, and failing to pay the ANZ Bank mortgagee. The plaintiff also alleged that methamphetamine had been manufactured at the property, causing it to be unfit for human habitation and reducing its value. The defendant did not oppose the plaintiff’s application for summary judgment. The Court found that the plaintiff had satisfied the burden of proof for summary judgment and made orders as sought. The Court also ordered that Sellers Family Independent Trustee Company Ltd be joined as a second plaintiff.

Orders