Stratford v Moses - [2021] NZHC 3473

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2021-476-40

[2021] NZHC 3473

UNDER the Trusts Act 2019

IN THE MATTER

of the Stratford Investment Trust

BETWEEN

BRIAN GEORGE STRATFORD, as

beneficiary and former trustee of the Stratford Investment Trust

Plaintiff

AND

JULIET MOSES, DAVID STUART VANCE

and LYNN STRATFORD, as trustees of the Stratford Investment Trust

First Defendants

AND

JULIET MOSES

Second Defendant

Hearing:
13 December 2021

(Telephone Conference)

Counsel:

D A T Chambers QC and M M Gray for Plaintiff

P J Hunt and D P Turnbull for First-named First Defendant and Second Defendant

J W A Johnson and J I Taylor for Third-named First Defendant J P Bell-Connell for Second-named First Defendant

Judgment:

15 December 2021

2ND RULING OF ASSOCIATE JUDGE LESTER

STRATFORD v MOSES (2nd Ruling) [2021] NZHC 3473 [15 December 2021]

[1] This Ruling follows an earlier Ruling issued 7 December 2021, and should be read with that Ruling.1

[2] Brian Stratford (Brian) and the now third-named first defendant, Lynn Stratford (Lynn), separated in July 2020. Their separation has been described by Ms Chambers QC, counsel for Brian, as acrimonious.

[3] The substantial farming assets established by Brian and Lynn were transferred to the trustees of the Stratford Investment Trust in 2015 (the Trust). At establishment, Brian and Lynn were trustees along with Ms Moses. In substance, this proceeding is a dispute between Brian and Lynn.

[4] Under the Trust, Lynn has the power to remove and appoint trustees. Lynn exercised that power to remove Brian as a trustee in 2020. After these proceedings were issued, Ms Moses resigned as a trustee and Lynn appointed Mr David Vance as a new independent trustee.

[5] While at the telephone conference held on 6 December 2021 Ms Chambers did not impugn Mr Vance’s integrity, Brian remains critical of his appointment. Mr Vance was added as a party in the 7 December 2021 Ruling.

[6] On 23 November 2021, Brian filed an application which sought the appointment of a receiver to administer the Trust or, in the alternative, that Court-appointed trustees be appointed and/or that Ms Moses and Lynn’s powers as a trustee be constrained.

[7] By memorandum dated 1 December 2021, Ms Chambers sought a hearing of that application before the end of year. That application for urgency was declined in the 7 December 2021 Ruling – in part because the appointment of Mr Vance was a practical control on Lynn’s powers as trustee. At the 6 December 2021 telephone conference, Ms Chambers asked that if an urgent hearing was not available that a date early in the New Year be allocated.

1 Stratford v Moses [2021] NZHC 3337.

[8] By Minute dated 8 December 2021, I advised counsel that a one day hearing was available on 8 February 2022.

[9] On 10 December 2021, Brian filed an amended statement of claim and an amended interlocutory application deleting the request to appoint a receiver but asking the…

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 [2021] NZHC 3473
Case: [2021] NZHC 3473
Decision Date: 15 December 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Brian George Stratford, as a beneficiary and former trustee of the Stratford Investment Trust, brought proceedings against Juliet Moses, David Stuart Vance, and Lynn Stratford, as trustees of the Trust. The proceedings concern the management and administration of the Trust, which holds substantial farming assets established by Brian and Lynn. The primary dispute is between Brian and Lynn, who separated acrimoniously in July 2020. The Court was required to decide several issues, including whether Lynn should be joined as a party in her personal capacity, the costs arising from a strike-out application, the necessity of an undertaking in damages, the admissibility of certain evidence, the possibility of cross-examination of deponents, and the handling of a Beddoe order application by Mr. Vance, an independent trustee.

The Court ruled that Lynn should be joined as a party in her personal capacity to protect her interests and address the personal power of appointment that is not held by her as a trustee. Costs on the strike-out application were awarded to Lynn as the challenged aspect of the claim was deleted. An undertaking in damages was deemed necessary due to the injunctive nature of the orders sought by Brian. The Court did not require formal applications for the exclusion of certain evidence or cross-examination of deponents, as these could be addressed during the hearing. To accommodate Mr. Vance's Beddoe order application, it was proposed that his costs be paid from the Trust assets until the determination of Brian's application. This arrangement aimed to secure an early hearing date and allow meaningful participation by Mr. Vance.

The Court made several directions for the filing and serving of documents, including oppositions, evidence, and submissions, leading up to the confirmed hearing date of 8 February 2022. The Court also left open the issue of whether the proceeding should have been filed with directions as to service, to be addressed at the first case management conference.

Orders