Stratford v Moses - [2022] NZHC 1463

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-476-40

[2022] NZHC 1463

UNDER the Trusts Act 2019

IN THE MATTER

of the Stratford Investment Trust

BETWEEN

BRIAN GEORGE STRATFORD

Plaintiff

AND

JULIET MOSES, DAVID VANCE AND LYNN STRATFORD, AS TRUSTEES OF THE STRATFORD INVESTMENT TRUST

First Defendants

JULIET MOSES
Second Defendant

LYNN STRATFORD

Third Defendant

Hearing:
Final Memorandum Received:

8 – 9 February 2022

1 April 2022

Appearances:

D A T Chambers QC and M M S Gray for Plaintiff D P Turnbull for First-named First Defendant and Second Defendant

J W A Johnson, J I Taylor and R M Petch for Third-Named First Defendant and Third Defendant – Lynn Stratford

J P Bell-Connell for David Vance
I T K T R F Hikaka for Haidee Stratford and Amanda Johnston Andrea Sutherland – Self Represented

Judgment:

22 June 2022

JUDGMENT OF EATON J

STRATFORD v MOSES [2022] NZHC 1463 [22 June 2022]

This judgment was delivered by me on 22 June 2022 at 9.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Table of Contents

Para No

Introduction [1]

The creation of the Stratford Investment Trust

[5]

Brian’s health/background

[12]

Why Brian says interim relief is necessary

[21]

Lynn says orders are unnecessary

[23]

The harvest of the New Year 2022

[27]

Brian trespassed from the farms

[31]

Legal principles relating to the removal of trustees

[36]

Circumstances warranting the removal of a trustee

[43]

Conflict of interest

[47]

Incompatibility

[48]

Removal of trustees following separation

[51]

Discussion of the grounds relied on by the plaintiff

[53]

Conclusion

[90]

Costs

[91]

Orders

[92]

Obiter

[94]

Introduction

[1] This proceeding is the result of the separation of Brian and Lynn Stratford after 44 years of marriage and of running farming operations together. Brian and Lynn have not yet divided the assets they built up over that time. A complicating factor in achieving a division of their assets is that in 2015 Brian and Lynn transferred their farming assets to the trustees of the Stratford Investment Trust (the Trust). When the Trust was established, Brian and Lynn, along with a solicitor, Ms Moses, the second defendant, were the trustees. The circumstances of the establishment of that Trust and how the Trust Deed came to confer the sole power to remove and appoint trustees on Lynn are disputed.

[2]Brian seeks interim relief in the following terms:

(a)Removing Lynn as trustee of the Stratford Investment Trust or suspending or restricting her powers to make any trustee decisions.

(b)Appointing Trevor Thornton as trustee of the Stratford Investment Trust.

(c)Preventing Lynn from exercising her power to appoint and remove trustees of the Stratford Investment Trust without the Court’s consent.

(d)Directing the trustees of the Stratford Investment Trust to exercise their power to remove Lynn and Mark Darrow as directors of BG & LM Stratford Limited, Tiverton Farm 2002 Limited, Stratford Dairies Limited, and Riverton Farms Limited, or making declarations to that effect.

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 Stratford v Moses

Details

AGLC: Stratford v Moses [2022] NZHC 1463
Case: [2022] NZHC 1463
Decision Date: 22 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Brian George Stratford brought an application against Juliet Moses, David Vance, and Lynn Stratford, as trustees of the Stratford Investment Trust, seeking interim relief in relation to the Trust. The Trust was established by Brian and Lynn in 2015 and contains the farming assets that Brian and Lynn developed over 44 years. The Trust was established with the assistance of Ms Moses, who was also a trustee of the Trust. The parties have been separated since July 2020 and have not yet divided their assets. Brian sought to remove Lynn as a trustee of the Trust and to appoint an independent trustee in her place. Brian also sought to prevent Lynn from exercising her power to appoint and remove trustees of the Trust without the Court's consent. The Court considered the evidence presented and concluded that while there was hostility between Brian and Lynn, there was no evidence to indicate the Trust assets were at risk. The Court also found that Lynn had demonstrated her commitment to preserving the assets of the Trust through exercising her personal power to remove or appoint trustees to appoint Mr Vance as an independent trustee. The Court declined to make the interim orders sought by Brian, except for an order preventing Lynn from exercising her power to remove or appoint trustees without the Court's consent. The Court reserved the question of costs.

Orders