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 MASONSecond 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 astrustee? [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…
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Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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