SIMON GEORGE WARBURTON MOORE AND KENT ARTHUR HORSFIELD and JENNY MOORE FAMILY TRUSTEE LIMITED s
[2024] NZHC 3179
•31 October 2024
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CIV-2024-454-82
[2024] NZHC 3179
UNDER Part 19 of the High Court Rules 2016 IN THE MATTER
of an application for orders under ss 112 and 114 of the Trusts Act 2019
BETWEEN
SIMON GEORGE WARBURTON MOORE
Applicant
AND
KENT ARTHUR HORSFIELD and JENNY MOORE FAMILY TRUSTEE LIMITED
First Respondents
THE PUBLIC TRUST
Second Respondent
Hearing: On the papers Appearances:
J M Walker for Applicant
Judgment:
31 October 2024
JUDGMENT OF McHERRON J
[1] Simon Moore’s without notice application to commence proceedings by way of originating application has been placed before me as Duty Judge. Mr Moore also seeks directions as to service, if permission is granted.
[2] Mr Moore’s proposed originating application relates to the Jenny Moore Family Trust (Trust), of which he is a beneficiary. He seeks orders:
(a)removing Kent Horsfield and Jenny Moore Family Trustee Ltd, the first respondents, as trustees of the Trust, pursuant to ss 112 and 114 of the Trusts Act 2019;
MOORE v HORSFIELD [2024] NZHC 3179 [31 October 2024]
(b)appointing Public Trust, the second respondent, as replacement trustee of the Trust pursuant to s 97 of the Trusts Act;
(c)restraining the powers of Barbara Hartmour to appoint and remove trustees of the Trust; and
(d)that costs of the application be fixed and paid by the Trust.
[3] The grounds on which Mr Moore seeks these orders include that the first respondent trustees:
(a)have failed to provide him with basic trust information in a timely manner, or at all;
(b)are unable to properly discharge their fiduciary obligations as trustees as each of them has conflicting professional roles and fiduciary responsibilities as between the Trust and the Estate of Jenny Moore (the applicant’s mother) and the beneficiaries of each of the Trust and the estate;
(c)are mismanaging the estates of the Trust by adopting an “altogether passive approach to the prudent investment of the [Trust’s] assets”, and that they have failed to pursue a clear strategy for obtaining maximum long- or short-term returns and as a result are “dissipating and/or eroding the potential value of the assets to the detriment of all the beneficiaries”;
(d)have failed in their duty to act objectively and in the interests of all beneficiaries of the Trust by permitting Mr Moore’s brother, Roger Moore, to have the sole and free use of the most valuable assets of the Trust (a freehold property at in Feilding), in circumstances where “his free use and occupation is undocumented by resolution or otherwise”;
(e)have conflated their management and administration of the Trust with that of the estate of Jenny Moore, more particularly that they have “expressed that there comprise one global entity for the purposes of making distribution decisions”;
(f)have alleged that Mr Moore and his legal representatives have been threatening or hostile towards them (which allegations are denied).
Additional background to application
[4] Further relevant context is that the applicant Mr Moore has recently commenced proceedings in the High Court at Palmerston North under s 4(1) of the Family Protection Act 1955 in which he seeks to establish that by her will Jenny Moore failed to have regard to his circumstances and breached her moral duty as a wise and just testatrix to make proper and adequate provision for his maintenance and support.
[5] Further, Mr Moore opposes the implementation by the trustees of a memorandum of wishes left by Jenny Moore. According to a memorandum of counsel filed on Mr Moore’s behalf, the first respondent trustees have undertaken not to make any distribution on an interim basis, although the Court has not received any confirmation of this from the first respondents.
Jurisdiction to permit proceeding to be commenced by originating application
[6] The originating application procedure under pt 19 is normally limited to cases where particularised pleadings and interlocutory steps such as discovery are not necessary for the proper determination of issues. Such a case:1
… tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is a possibility of crossclaims or counterclaims.
1 Hong Kong and Shanghai Banking Corporation v Erceg (2010) 20 PRNZ 652 (HC) at [26].
[7] Rule 19.2 of the High Court Rules provides that applications to the Court under various listed enactments must be made by originating application. The only Trusts Act provision listed in r 19.2 is s 136, under which a trustee may apply for an order authorising the distribution of missing beneficiaries’ shares of trust property. As well, a trustee seeking directions as to whether to bring or defend a proceeding in their capacity as a trustee (a Beddoe application), may do so by originating application.2
[8] Otherwise, proceedings in which relief is claimed solely under the Trusts Act are generally required to be brought under pt 18 of the High Court Rules, and to be commenced by statement of claim.3 The originating application procedure under pt 19 is designed to be speedier and less expensive than that under pt 18. That said, the pt 18 procedure is still more efficient and confined than a general proceeding.4
[9] Mr Moore relies on the general provision in r 19.5 which provides that the Court may in the interests of justice permit a proceeding not mentioned in rr 19.2–19.4 to be commenced by originating application. Rule 18.4(2) also allows a pt 18 proceeding to be commenced under pt 19 “if it is eligible to be so commenced”:
(2) The application of this Part to a proceeding does not prevent the commencement of that proceeding by originating application if it is eligible to be so commenced under Part 19, in which event this Part [i.e. pt 18] does not apply.
[10] As explained in Public Trust v Kain, the obvious example of an eligible application is an application under s 136 of the Trusts Act, which is expressly required to be brought under pt 19 by r 19.2(x). There is no equivalent reference to an application under ss 112, 114 or 97 in r 19.2. The strong inference to be drawn from the above consideration of the rules is that an application for removal and replacement of a trustee under ss 112 and 114 and 97 of the Act is to be brought under pt 18, unless it is in the interests of justice to permit the originating application procedure to be used, via r 19.5.5 By this means, the originating application procedure is commonly used in respect of applications for the removal or replacement of trustees.6 However,
2 High Court Rules 2016, rr 19.4, 19.4A.
3 Rules 18.1(b)(xiii) and 18.4(1)(a). See also Jones v O’Keeffe, above n 7 at [51].
4 Public Trust v Kain [2018] NZHC 1547 at [15].
5 At [21].
6 See for example Wellwood v Wellwood [2019] NZHC 801 at [8] and Clarkson v Clarkson [2020] NZHC 2211, (2020) 5 NZTR 30-016 at [11] and [25] (permitting the proceeding to proceed under
this remains subject to the caveat that the originating application procedure “is not appropriate where factual issues are in dispute”.7
Analysis
[11] As is apparent from the above grounds on which Mr Moore’s application is based, there is potential for factual disputes to arise in the present case. I have no real sense of how likely it is for disputes to arise, as the present application has been filed on a without notice basis. However, I am bound to assume that the proposed respondents may disagree with some or all the grounds outlined above at [3].
[12] In Mr Moore’s counsel’s memorandum, it is said that the current appointor of the Trust, the applicant’s sister Ms Hartmour, has acknowledged through her counsel the benefits of appointing an ”objective, independent trustee under the present circumstances”, but she does not support the appointment of the second respondent. Rather, it is said that Ms Hartmour has proposed two private professional bodies, who are unacceptable to Mr Moore. In one of his lengthy affidavits, Mr Moore says he has not approached Ms Hartmour to exercise her power to remove the first respondents as trustees. Mr Moore says “I have no idea whether she is happy for them to remain in place or not”. However, counsel for Mr Moore has indicated that the first respondent trustees have confirmed they will retire if the Public Trust is willing to accept appointment.
[13] I do not consider that it would be in the interests of justice to permit this proceeding to be commenced by originating application, considering the foreshadowed disputed matters as indicated above.
[14] The position may well be different if an agreed position could be reached involving the consent of the first and second respondents and Ms Hartmour to the proposed course of action. However absent such agreement, in my view, it is appropriate for this proceeding to be commenced on notice in the manner provided for under the High Court Rules, namely under pt 18.
pt 19, but making directions to ensure there is control of the proceeding so that the strong disagreement between the parties remain directed to the key issues).
7 Jones v O’Keeffe [2019] NZCA 222, (2019) 24 PRNZ 529 at [52].
Result
[15] The application for permission to commence the proceeding by originating application is dismissed.
McHerron J
Solicitors:
Chapman Tripp, Auckland for Applicant
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