Tarasiewicz v Titford - [2013] NZHC 3466

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-488-872 [2013] NZHC 3466

BETWEEN GINA TARASIEWICZ Applicant

ANDMENGHA TRUSTEES LIMITED Second Applicant

ALLAN JOHN TITFORD First Respondent
SUSAN MAREE COCHRANE Second Respondent
OFFICIAL ASSIGNEE Third Respondent

Hearing: 13 December 2013

Appearances: G F Kelly for applicants
First Respondent in person
B Westenra for second respondent K M Wakelin for third respondent D M Shanahan for children
R Butler as counsel appoiinted to assist the Court
M Thomas as litigation guardian for Leo Titford

Judgment: 18 December 2013

JUDGMENT OF LANG J

[on application for orders under s 64(1) of the Trustee Act 1956]

This judgment was delivered by me on 18 December 2013 at 2.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TARASIEWICZ v TITFORD [2013] NZHC 3466 [18 December 2013]

[1] This proceeding concerns a trust known as the Mengha Trust (“the trust”). The first respondent, Mr Titford, arranged for the trust to be created in Launceston, Tasmania by deed dated 1 May 1999 (“the trust deed”).

[2] The person named in the Deed as “the Principal” has the power to appoint and remove trustees, and to appoint additional beneficiaries. Mr Titford claims that he is the current Principal under the trust deed. The second applicant, Mengha Trustees Limited (“Mengha Trustees”), is the current trustee of the trust. Mengha Trustees was appointed as trustee by order of this Court on 2 August 2011. The first applicant, Ms Tarasiewicz, is the director and shareholder of Mengha Trustees. She was formerly Mr Titford’s accountant.

[3] Mr Titford is named in the trust deed as the Primary Beneficiary. Primary Beneficiaries under the trust deed also include Mr Titford’s spouse and/or defacto spouse. Mr Titford was married to the second respondent, Ms Cochrane, for a considerable period and their relationship produced seven children. Mr Titford and Ms Cochrane separated in July 2009 under fraught circumstances, but their marriage remains on foot. Although Mr Titford remains married to Ms Cochrane, he does not accept that either she or the seven children are beneficiaries in terms of the trust deed.

[4] Mr Titford is also the father of another child, Leo, who was born during the course of his relationship with his current partner, Ms Marcian Thomas. Leo is now approximately 16 months old.

[5] The trust’s principal assets are two farms situated in the Far North. One of these is situated at Awanui, and comprises six titles (“the Awanui property”). The second is situated near Kaikohe, and comprises four titles (“the Kaikohe property”).

[6] The Awanui property is situated approximately 13 kilometres north of Kaitaia. It comprises a total of approximately 230 hectares, and is farmed as a dairy unit. The property includes a headland that extends out into the Rangaunu Harbour. It also includes an island that can be accessed by a causeway across part of the harbour.

[7] Mengha Trustees seeks an order under s 64(1) of the Trustee Act 1956 (“the Act”) giving it 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 Tarasiewicz v Titford

Details

AGLC: Tarasiewicz v Titford [2013] NZHC 3466
Case: [2013] NZHC 3466
Decision Date: 18 December 2013

CaseChat Overview and Summary

This case involved an application by Mengha Trustees Limited (the applicant) to the High Court of New Zealand, seeking orders under s 64(1) of the Trustee Act 1956 to allow them to sell one of the trust's properties, and to vest the titles to that property in themselves. The applicant also sought an order removing Allan John Titford (the first respondent) as Principal under the trust deed. Mengha Trustees was appointed as trustee of the Mengha Trust by order of this Court on 2 August 2011. Allan John Titford is named in the trust deed as the Primary Beneficiary, but does not accept that his spouse or children are beneficiaries in terms of the trust deed. Allan John Titford is also the father of another child, Leo, who was born during the course of his relationship with his current partner, Ms Marcian Thomas. The trust's principal assets are two farms situated in the Far North, one of which is situated at Awanui, and comprises six titles (the Awanui property). Mengha Trustees seeks an order under s 64(1) of the Act giving it the power to sell the Awanui property. Mengha Trustees also sought a similar order in respect of the Kaikohe property, but now accepts that any sale of that property will raise complex issues. The applicants also seek an order under s52 of the Act vesting the titles to the Awanui property in Mengha Trustees. This is necessary because the titles are currently in the name of Ms Cochrane and the Official Assignee. Secondly, the applicants seek an order removing Allan John Titford as Principal under the trust deed. The applicants are concerned that Allan John Titford may use this power to remove the present trustee and replace it with a person who is sympathetic to his cause. This could jeopardise the proposed sale. Allan John Titford and Ms Thomas oppose all three applications. The Court held that the wording used in Clause 10 of the trust deed is sufficiently wide to permit Mengha Trustees to sell trust assets, including any farm property that it might own. The trust deed therefore already contains the power that Mengha Trustees seeks in order to complete the sale of the Awanui property. The Court also held that it was expedient in the management or administration of the Mengha Trust for the Awanui property to be sold. The Court further held that it is inexpedient, difficult or impracticable for Mengha Trustees to effect the sale of the Awanui property without the assistance of the Court. The Court made an order under s 64(1) of the Act granting Mengha Trustees the power to complete the existing agreement for the sale and purchase of the Awanui property. The Court also made a further order under s 52 of the Act vesting the titles to the Awanui property in Mengha Trustees. In exercise of the Court’s inherent power to supervise trusts, the Court made an order removing the power to remove and appoint trustees from Allan John Titford. That power is henceforth vested in Mengha Trustees, but may only be exercised with the Court’s leave.

Orders