Terry v Terry - [2022] NZHC 1721

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2021-454-73

[2022] NZHC 1721

IN THE MATTER of the Dennis Terry Trust and the Christine Terry Trust

UNDER

the Trusts Act 2019

BETWEEN

NIGEL AMESBURY TERRY

Plaintiff

AND

CHRISTINE MARY TERRY, ROSS JOHN HADWIN, WILLIAM

KENNETH RAMSEY-EVANS, as trustees of the Dennis Terry Trust

First Defendants

AND

CHRISTINE MARY TERRY, ROSS JOHN HADWIN and WILLIAM

KENNETH RAMSEY-EVANS as trustees of the Christine Terry Trust

Second Defendants

Hearing: 27 June 2022

Appearances:

G Mason for Plaintiff/Applicant

P J Reardon for First Defendants (no appearance required) P Chisnall for Respondents

D Sheppard for S D Terry, Interested Party (no appearance required)

Judgment:

19 July 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Initial Disclosure Application)

TERRY v TERRY [2022] NZHC 1721 [19 July 2022]

[1] The plaintiff applies for an order that the second defendant trustees (the trustees) produce, as part of their initial disclosure documents, the documents they refused to provide to the plaintiff when requested under the Trusts Act 2019 (the Act).

[2] The plaintiff is the son of Christine Mary Terry (Christine) and the late Dennis Terry (Dennis) and is a discretionary and final beneficiary of the Christine Terry Trust (the CTT).

[3] The Dennis Terry Trust and the CTT (the Trusts) were settled by Dennis and Christine respectively. Dennis died in 2017. Christine is the executor of Dennis’ estate.

[4] The Trusts ultimately own a farming enterprise in which the plaintiff, in his own right, has an interest. There are disputes between the plaintiff and Christine in relation to the management of the farm and the future of its assets, the Trusts and Dennis’ estate.

[5] The statement of claim seeks the removal of the existing trustees from the Trusts and their replacement with the Public Trust.

[6] The plaintiff, prior to issuing these proceedings, requested from the second defendants the following information:

(a)a copy of the Trust Deed for the CTT;

(b)copies of the CTT’s financial statements for the financial years ending 2016 to 2021 (save for the 2018 year) from the CTT; and

(c)details of the recipient of $105,000 distributed to an unidentified recipient in the financial year ending 2018.

[7] The request was made pursuant to s 52 of the Act. The trustees declined to provide the information. Recently, a copy of the CTT Trust Deed has been provided to Mr Mason, counsel for the plaintiff, along with a response to query [6](c) above.

Accordingly, it is only the accounts for the CTT Trust that are now subject to this application.

[8] In relation to the refusal to provide the above information, the plaintiff seeks the following order in this proceeding:

Review of the decision of the Defendants in their capacity as trustees of the CTT not to provide a copy of the Trust Deed, and the CTT’s financial statements for the years from financial year ending…

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 Terry v Terry

Details

AGLC: Terry v Terry [2022] NZHC 1721
Case: [2022] NZHC 1721
Decision Date: 19 July 2022

CaseChat Overview and Summary

The case of Terry v Terry involved a dispute between Nigel Amesbury Terry, the son of Christine Mary Terry and the late Dennis Terry, and the trustees of the Dennis Terry Trust and the Christine Terry Trust. The plaintiff sought an order for the trustees to disclose certain documents as part of their initial disclosure under the Trusts Act 2019. The trustees had refused to provide the documents, and the plaintiff sought a review of their decision. The court had to decide whether the trustees were obliged to include the requested information in their initial disclosure.

The key issue in this case was whether the trustees were required to disclose the requested documents as part of their initial disclosure under the High Court Rules 2016. The court considered the purpose of initial disclosure, the factors trustees must consider when deciding whether to provide information to beneficiaries, and the interplay between the Trusts Act 2019 and the High Court Rules. The court found that the trustees' decision to withhold the information was reasonable, and that the application for initial disclosure was premature. As a result, the court dismissed the application and declined to order the trustees to provide the documents as part of their initial disclosure.

In summary, the court held that the trustees were not required to disclose the requested documents as part of their initial disclosure, as their decision to withhold the information was reasonable and the application for initial disclosure was premature. The court found that determining the reasonableness of the trustees' decision was a matter for the substantive hearing, and not an interlocutory application. As a result, the application for initial disclosure was dismissed, and the trustees were not required to provide the documents as part of their initial disclosure.

Orders