Taylor v Taylor - [2021] NZHC 992

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-236

[2021] NZHC 992

UNDER Part 18 of the High Court Rules and the Trustee Act 1956

IN THE MATTER OF

of an application of JACKIE MARIE TAYLOR AND FRANKLIN LAW

TRUSTEE (TAYLOR) LIMITED as trustees of the TAYLOR FAMILY TRUST

BETWEEN

JACKIE MARIE TAYLOR AND FRANKLIN LAW TRUSTEE (TAYLOR)

LIMITED as trustees of the TAYLOR FAMILY TRUST

Plaintiffs

AND

BRETT OWEN TAYLOR

Defendant

Hearing:
29 April 2021

Further telephone conference held 5 May 2021

Appearances:

E J Taia for Defendant

No appearance for or by the Defendant

Judgment:

5 May 2021

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 5 May 2021 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: Franklin Law, Auckland

TAYLOR v TAYLOR [2021] NZHC 992 [5 May 2021]

[1] The plaintiffs, Ms Taylor and Franklin Law Trustee (Taylor) Ltd (“FLTL”), and the defendant, Mr Taylor, are the trustees of the Taylor Family Trust (“trust”).

[2]The plaintiffs seek orders:1

(a)removing Mr Taylor as a trustee of the trust; and

(b)vesting a residential property in Tuakau in FLTL (“Tuakau property”).

[3] I set out the background to the application below but in short the plaintiffs contend that Mr Taylor has failed, and is failing, to fulfil his duties as a trustee and that, as a result, it is in the interests of the beneficiaries to remove him. Ms Taylor would herself then retire as a trustee, leaving FLTL as the sole trustee of the trust.

[4] The plaintiffs filed this application in February 2021, supported by affidavit evidence from Ms Taylor and Ms Kelly Jones. Ms Jones is a partner in Franklin Law and a director of FLTL. The sole shareholder of FLTL is Franklin Law Trustee Ltd.

[5] Attempts to serve the application, evidence, and other documents on Mr Taylor personally have been unsuccessful, due to his ill-health. On 22 March 2021, Gordon J made an order for substituted service on Holland Beckett Law (“HBL”). HBL is acting, or has previously acted, for Mr Taylor. The plaintiffs served the documents in accordance with the Judge’s orders. The documents served included Gordon J’s minute recording the date on which the application would be heard. Mr Taylor has not taken any steps. Having had the benefit of comprehensive oral and written submissions from Mr Taia, counsel for the plaintiffs, and for the reasons set out below, I am satisfied that I should determine the application without further delay.

Background

[6] The trust was settled in October 2016. The discretionary beneficiaries of the trust are Mr Taylor, Ms Taylor, Ms Taylor’s children, and other persons or entities not

1 Originating Application for Orders dated 12 February 2021.

particularly relevant at present. The final beneficiaries are Ms Taylor’s children, and their children or remoter descendants.

[7] Mr and Ms Taylor, married at the time the trust was settled, separated…

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 Taylor v Taylor

Details

AGLC: Taylor v Taylor [2021] NZHC 992
Case: [2021] NZHC 992
Decision Date: 5 May 2021

CaseChat Overview and Summary

The case of Taylor v Taylor involved an application by Jackie Marie Taylor and Franklin Law Trustee (Taylor) Ltd, the trustees of the Taylor Family Trust, seeking to remove Brett Owen Taylor as a trustee and to vest a residential property in Tuakau in Franklin Law Trustee (Taylor) Ltd. The plaintiffs argued that Mr Taylor had failed to fulfill his duties as a trustee and that it was in the interests of the beneficiaries to remove him. The court was required to decide whether Mr Taylor should be removed as a trustee and whether the Tuakau property should be vested in Franklin Law Trustee (Taylor) Ltd. The court found that the threshold for removal had been met and that it was necessary to remove Mr Taylor as a trustee in the interests of the beneficiaries. The court made orders removing Mr Taylor as a trustee conditional on Jackie Marie Taylor retiring as a trustee and resigning as a director of Franklin Law Trustee (Taylor) Ltd. The court also made an order vesting the Tuakau property in Franklin Law Trustee (Taylor) Ltd conditional on the same matters. The court reserved leave to apply, including on any issue to costs if they were not to be costs in the winding up of the trust. The court directed the case officer to send a copy of the judgment to Holland Beckett Law and Gowing & Co, who had acted for Mr Taylor on occasion, and requested that they forward a copy of the judgment to Mr Taylor.

Orders