Smith v Penney

[2013] NZHC 2727

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-003064 [2013] NZHC 2727

BETWEEN

NIGEL PHILIP SMITH (in his capacity as a trustee of the Maria Charles Family Trust)

Plaintiff

AND

STEPHEN CHARLES PENNEY (in his personal capacity and in his capacity as a trustee of the Maria Charles Family Trust) First Defendant

DONNA MARIA SIMUNOVICH (in her personal capacity and in her capacity as a trustee of the Maria Charles Family Trust) Second Defendant

Hearing:	11 and 18 October 2013
Appearances:	WGC Templeton for the Plaintiff M Heard and F Whyte for the First Defendant S E McNabb for the Second Defendant
Judgment:	18 October 2013

[ORAL] JUDGMENT OF WYLIE J

SMITH v PENNEY & ANOR [2013] NZHC 2727 [18 October 2013]

[1]      These   proceedings   concern   a   dispute   between   the   trustees   of   the

Maria Charles Family Trust.

[2]      The  application  before  me  is  an  application  by  one  of  the  trustees, Mr Stephen Penney, to set aside a judgment entered against him on 8 August 2013 by Associate Judge Christiansen.

[3]      The plaintiff in these proceedings, Mr Nigel Smith, is also a trustee.  He has also sought an order that new trustees should be appointed to the trust.  That order is not opposed by any of the parties.   The only issue between them was as to the identity of the new trustees to be appointed.  They agreed that one of those trustees should be a Mr Nole Irvine, or a trustee company to be nominated by him.  They disagreed on the second trustee, although at the end of the day, all agreed to abide the decision of the Court.

[4]      In my view, one of the two prospective nominees, a Mr Michael Taylor, is an appropriate person to be appointed as a new trustee, along with Mr Irvine.   Both have consented to their appointment.   I will set out in the reasons I will give in relation to the application to set aside the judgment of Associate Judge Christiansen, my reasons for this decision.

[5]      I make the following order:

(a)      Pursuant to s 51 of the Trustee Act 1956, unless the following persons (the “present trustees”) resign their positions as trustees within two working days of the date of this order, that is by 5.00 pm on Tuesday,

22 October 2013, with those resignations being effective as from that time, they are to be removed as from that time as trustees of the Maria Charles Family Trust:

(i)       Donna Maria Summonovich; (ii)      Stephen Charles Penney; and (iii)     Nigel Philip Smith.

(b)Pursuant to s 51 of the Trustee Act 1956, the following persons are to be appointed trustees of the Maria Charles Family Trust, effective from the date of the resignations, or effective as from 5.00 pm on Tuesday, 22 October 2013, as the case may be:

(i)Nole  Ronald  Irvine,  or  a  trustee  company  nominated  and controlled by him; and

(ii)Michael Charles Taylor, or a trustee company nominated and controlled by him.

(The “new trustees”)

(c)      The  present  trustees  are  to  do  all  things  necessary to  ensure  the transfer of investing of all assets and property of the trust to the new trustees.

(d)The present trustees are to deliver up all information, correspondence and  records  relating  to  the  administration  of  the  trust  and  trust property, to the new trustees on request.

(e)      The present trustees are to respond promptly and fully to any further request for information by the new trustees.

(f)       The new trustees have leave to intervene in this proceeding

(g)Leave is reserved to the parties and the new trustees to apply to the Court by memorandum for clarification of any aspect of the above orders.

[6]      This matter is to be listed in the Duty Judge list two months from the date of this judgment, to review any further directions necessary for the conduct of the proceeding.  Counsel for the plaintiff is to file a memorandum five working days in

advance, and counsel for the defendants are to file memoranda two working days in advance.   If no matters have arisen, and no further directions are necessary, the matter  can  be  removed  from  the  Duty  Judge  List  on  the  filing  of  a  joint

memorandum of counsel.

Wylie J