Triezenberg v Mason - [2019] NZHC 14

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-1688

[2019] NZHC 14

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: 3 to 6 September 2018; updated submissions 14 September 2018

Counsel:

VTM Bruton QC and J Matheson for plaintiffs GJ Thwaite for defendants

Judgment:

17 January 2019

Reissued:

19 February 2019 (Removal of suppression orders)

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 17 January 2019 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Wilson McKay, Auckland
GJ Thwaite, Auckland

Triezenberg and Mason [2019] NZHC 14 [17 January 2019]

CONTENTS

Introduction [1]

Factual background
The establishment of the Mamari Trust  [10] Mrs Mason’s diagnosis and establishment of Mamari (No. 2) Trust  [14] Mrs Mason’s condition worsens – admission to Middlemore/St Andrew’s  [24] Issues following Mrs Mason’s admission to St Andrew’s  [33]
Family Court proceedings and settlement agreement  [43]
Steps taken pursuant to the settlement agreement  [44]
Issues continue despite Mrs Mason’s return home  [48]
These proceedings commenced and more recent events  [65]
The current position  [69]

A preliminary “red herring” – a purported arbitration agreement [74]

Did Mr Mason validly remove the plaintiffs as trustees?
The basis for the purported removal [85]
Did either or both of Ms Triezenberg or Mr Dodd desire to be discharged as
trustee? [88]

As of 11 March 2018, did Mr Mason have the sole power of appointment
under the Mamari Trust deed? [99]

As of 11 March 2018, did Mr Mason have the sole power of appointment
under the Mamari (No. 2) Trust deed? [105]

Should any or all of the current trustees be removed and replaced?

Legal principles  [114]
Should the Court interfere at all?  [117]
Should Mr Mason be removed as trustee?  [124]
Should either or both of Ms Triezenberg and Mr Dodd be removed as
trustee?  [136]

Should Mark be appointed a further trustee of either or both the trusts? [159]

Result and next steps [165]

Introduction

[1] The first defendant (Mr Mason, now in his mid-80s) has had a dramatic and sad falling out with his two daughters, one of whom is the first-named plaintiff in these proceedings (Ms Triezenberg). Mr Mason has also fallen out with the second-named plaintiff (Mr Dodd), the family accountant since 1993.1

[2] The reason why these matters have come before the Court is because the plaintiffs and Mr Mason, together with Mr Mason’s wife, the second defendant (Mrs Mason), have been the trustees of two family trusts settled by Mr and Mrs Mason some years ago. The falling out between the parties has compromised the operation of the trusts. As a result, the plaintiffs apply to remove Mr Mason as trustee. They also seek orders removing Mrs Mason as a trustee.

[3] It is common ground Mrs Mason ought…

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 14
Case: [2019] NZHC 14
Decision Date: 17 January 2019

CaseChat Overview and Summary

In Triezenberg v Mason, the High Court was asked to determine whether two family trusts could continue to be administered by the three trustees named by the settlors, or whether they should be removed and replaced by a professional trustee. Vicki Triezenberg and Paul Dodd were the trustees named by the settlors, Mr and Mrs Mason, with Mr Mason also being named as a trustee. The Masons had a family dispute, leading to Mr Mason seeking to remove Triezenberg and Dodd from their roles as trustees. The Court had to consider whether Mr Mason had the power to remove the trustees, and if not, whether the Court should remove any or all of the trustees in light of the dysfunction within the trusts. The Court found that Mr Mason did not have the power to remove the trustees. The Court also found that Mr Mason should be removed as trustee due to his hostility towards the other trustees and his unwillingness to accept the trusts' existence and purpose. The Court declined to remove Triezenberg and Dodd, finding that they had acted conscientiously and in the best interests of the trusts' beneficiaries. The Court also declined to appoint Mr Mason's son, Mark, as an additional trustee. The Court ordered that Mr and Mrs Mason be removed as trustees, and directed the parties to confer and agree on the form of orders to vest the trust property and address other matters such as costs and amendments to the trust deeds.

Orders