Triple A Trustees Limited - [2020] NZHC 1314

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-796

[2020] NZHC 1314

UNDER Part 19 of the High Court Rules

IN THE MATTER

of an application under the Trustee Act 1956

BETWEEN

TRIPLE A TRUSTEES LIMITED

Applicant

Hearing: 13 June 2019

Appearances:

D Bigio QC and C Harris for Applicant

N Ingram QC and M Kyriak for Represented Beneficiaries

Result:

13 June 2019

Reasons:

12 June 2020

JUDGMENT OF DUFFY J

This judgment is delivered by me on 12 June 2020 at 11:30am pursuant to r 11.5 of the High Court Rules.

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Registrar / Deputy Registrar

Solicitors:
Jackson Russell Lawyers, Auckland Kyriak Law, Auckland
D R Bigio AC, Auckland Noel Ingram AC, Auckland

TRIPLE A TRUSTEES LIMITED [2020] NZHC 1314 [13 June 2019]

[1] On 13 June 2019 I delivered a results judgment granting the unopposed originating application to replace Triple A Trustees Ltd with the FFP Trustee (NZ) 2 Ltd (FFP) and ordering the recovery from trust funds of reasonable costs and disbursements of the applicant in making the application.1 My reasons now follow.

[2] The Triple A Trust (the Trust) is a New Zealand foreign trust. The applicant, Triple A Trustees Ltd is a New Zealand registered company and the sole trustee.

[3] The Trust was settled by Ataollah Ahsani on 28 February 2014 and holds assets on trust for discretionary beneficiaries of the Ahsani family. Mr Ahsani is the Trust’s appointor and protector. He holds the power of appointment and removal of trustees. He advised the applicant of his intention to remove the applicant as trustee and to replace it with FFP, which is also a New Zealand registered company. Such replacement automatically triggers an obligation on the part of the applicant to transfer the Trust’s assets to FFP.

[4] The applicant did not oppose in principle its removal or the appointment of FFP as trustee. However, circumstances that were affecting the Ahsani family at the time caused the applicant to seek a Court order authorising the applicant, without liability, to transfer the Trust assets to FFP. Hence this application.

[5] The Ahsani family controls the Monaco based Unaoil group of companies (the Group) based in Monaco, which in 2016 became subject to allegations they had distributed bribes to government officials globally on behalf of multi-national companies being awarded government contracts within the oil industry.

[6] In March 2016 the United Kingdom Serious Fraud Office (UK SFO) commenced an investigation into the Group in relation to possible offences of bribery, corruption and/or money laundering committed under United Kingdom law. Authorities in Monaco, at the request of the UK SFO, searched the homes of the Ahsani family. In May 2017 Mr Ahsani’s son, Sassan, was arrested by the UK SFO and his documents were seized. He was later released with no charges laid. The UK SFO raided offices of the Group and homes of members of the Ahsani family in the

1 Re Triple A Trustees…

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 Triple A Trustees Limited

Details

AGLC: Triple A Trustees Limited [2020] NZHC 1314
Case: [2020] NZHC 1314
Decision Date: 12 June 2020

CaseChat Overview and Summary

The case involves Triple A Trustees Limited, a New Zealand registered company and the sole trustee of the Triple A Trust, a New Zealand foreign trust settled by Ataollah Ahsani on 28 February 2014. The trust holds assets for discretionary beneficiaries of the Ahsani family. Mr Ahsani, the Trust’s appointor and protector, advised the applicant of his intention to remove Triple A Trustees Limited as trustee and replace it with FFP Trustee (NZ) 2 Ltd (FFP). The applicant did not oppose in principle its removal or the appointment of FFP as trustee but sought a Court order to transfer the Trust’s assets to FFP without liability. The application was brought due to the ongoing investigations into the Monaco-based Unaoil group of companies, controlled by the Ahsani family, for alleged bribery, corruption, and money laundering. The United Kingdom Serious Fraud Office (UK SFO) had commenced an investigation into the Group in 2016, leading to multiple arrests and seizures of documents and assets.

The legal issues in the case were whether the Court should grant the applicant permission to transfer the Trust assets to FFP without liability and if so, whether the Court's inherent jurisdiction or the Trustee Act 1956 should be exercised to grant such permission. The applicant argued that the Court should grant a Benjamin order, which would allow the transfer of Trust assets to FFP on the assumption of fact that there is no current proprietary claim, and without the risk of personal liability in the future. The applicant also sought approval for the transfer of the Trust assets to FFP pursuant to s 66 of the Trustee Act 1956.

The Court found that it was appropriate to exercise its inherent jurisdiction and make the orders sought, as recognised by the Benjamin line of case law. The Court was satisfied that the orders sought by the applicant were orders that could properly be made in accordance with the Benjamin principle and they did not require bolstering through resort to a “blessing order” under s 66 of the Trustee Act 1956. The Court granted the applicant permission to transfer the Trust assets to FFP without liability and for the recovery of reasonable costs of the applicant from the Trust’s assets.

The final orders were that Triple A Trustees Limited be replaced with FFP Trustee (NZ) 2 Ltd as the trustee of the Triple A Trust without liability to Triple A Trustees Limited and that the reasonable costs of Triple A Trustees Limited in making the application be recovered from the Trust's assets.

Orders