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Triezenberg v Mason

Triezenberg v Mason

Case [2019] NZHC 920 30 April 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1688

[2019] NZHC 920

UNDER Part 18 of the High Court Rules Trustee Act 1956

BETWEEN

VICKI ANN TRIEZENBERG and PAUL MORLEY DODD

Plaintiffs

AND

ALEXANDER CHARLES MASON

First Defendant

WENDY ANNE MASON

Second Defendant

Hearing: On the papers

Appearances:

VTM Bruton QC and J Matheson for Plaintiffs G J Thwaite for first Defendant

Judgment:

30 April 2019

JUDGMENT OF FITZGERALD J

[As to power of appointment and costs]

This judgment was delivered by me on Tuesday 30 April 2019 at 3.00 pm Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Solicitors: Wilson McKay, Auckland
G J Thwaite, Auckland

TRIEZENBERG v MASON [2019] NZHC 920 [30 April 2019]

Introduction

[1] The plaintiffs (Ms Triezenberg and Mr Dodd) sought Court orders removing the first and second defendants (Mr and Mrs Mason respectively) as trustees of two family trusts of which all four were trustees. There was no dispute it was appropriate for Mrs Mason to be removed; she has advanced dementia and is incapable of fulfilling her role as trustee. Mr Mason, however, disputed his removal.

[2] The backdrop to these proceedings is an irretrievable breakdown of the relationship between Mr Mason on the one hand, and Ms Triezenberg (his daughter) and Mr Dodd (the long-standing family accountant) on the other. The rift between trustees resulted in significant dysfunction in the trusts and unsustainable dissipation of trust assets. In addition, Mr Mason did not fully understand his role as trustee, nor, given the rift with Ms Triezenberg and his other daughter, Ms Richardson (both of whom are beneficiaries of the trusts), was he capable of considering all beneficiaries of the trusts in a fair and impartial manner.

[3] After a substantive hearing in September last year, I made orders removing both Mr and Mrs Mason as trustees.1 I also considered removing but did not remove the plaintiffs as trustees.

[4] In addition to orders removing Mr Mason as trustee, the plaintiffs also sought orders amending the terms of the trust deeds so that the power of appointment of new trustees vests in the trustees for the time being, rather than currently vesting in Mr Mason on the one hand, and the plaintiffs (as trustees) on the other. I deferred making any orders on this aspect of the claim until after the parties were aware of my findings on the proper interpretation of the trust deeds’ provisions on power of appointment and removal of trustees, which was also in dispute.

[5] After delivery of my substantive judgment, I sought further submissions on this issue. The plaintiffs maintain their application for an order varying the power of appointment and removal, so that it vests in the trustees. Mr Mason opposes any such variation.

1 Triezenberg v Mason [2019] NZHC 14 [Substantive Judgment].

[6] I also sought submissions on the question of the costs of these proceedings, which to date,…

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 Triezenberg v Mason

Details

AGLC: Triezenberg v Mason [2019] NZHC 920
Case: [2019] NZHC 920
Decision Date: 30 April 2019

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry was presented with a case involving the removal of trustees from two family trusts, the Mamari Trust and the Mamari (No. 2) Trust. Vicki Ann Triezenberg and Paul Morley Dodd, the plaintiffs, sought the removal of Alexander Charles Mason and Wendy Anne Mason, the defendants, as trustees of the trusts. The primary dispute centered on the power of appointment and removal of trustees and the associated costs of the litigation. Wendy Anne Mason's removal was uncontested due to her advanced dementia, but Alexander Charles Mason opposed his removal. The court had to decide whether the power of appointment and removal should vest in the trustees or remain with Alexander Charles Mason, and whether his legal costs should be indemnified by the trust assets.

The court found that given the strained relationship between Alexander Charles Mason and the plaintiffs, there was a significant risk of future disputes over the appointment and removal of trustees. It was deemed appropriate to vary the trust deeds so that the power of appointment and removal would vest in the trustees. The court emphasized that the power of appointment and removal is a fiduciary power that must be exercised in the best interests of the beneficiaries, and Alexander Charles Mason's personal animosity towards the plaintiffs made him unfit to hold this power. Additionally, the court ruled that the plaintiffs' costs, as well as Alexander Charles Mason's costs, should be indemnified by the trust assets, as his conduct in defending the removal proceedings was related to his role as trustee and did not amount to dishonesty or a breach of trust.

Orders