Trustees Executors Ltd v Nichols

[2023] NZHC 3289

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-3

[2023] NZHC 3289

UNDER

the Trusts Act 2019

IN THE MATTER

of J C NICHOLS KURIHEKA TRUST

BETWEEN

TRUSTEES EXECUTORS LTD

Applicant

AND

TIMOTHY JOSEPH COWIE NICHOLS, KATHRYN MARY HELEN TRYFIATIS, HAROLD GUY NICHOLS,

SARAH VIRGINIA JANE SIMMONS, NICHOLAS BERNARD ORBELL, HENRY SIMON ORBELL,

NICOLA ANNE WHITNEY HEDLEY, SUSAN VIRGINIA BLAKE,

DAVID JOHN THACKER, CHRISTINA MARY LUCAS,

HANS CORNELIUS VAN DER WILT, ARTHUR MARK VAN DER WILT, ANTON DAVID VAN DER WILT, MEGAN ELIZABETH NICHOLS, BRONWYN HELEN NICHOLS, AND HUGH CHARLES NICHOLS AS

BENEFICIARIES OF THE KURIHEKA TRUST

Respondents

Hearing:	(Determined on the papers)
Appearances:	F B Barton and A Clark-Tahana for Applicant
Judgment:	20 November 2023

JUDGMENT OF OSBORNE J

TRUSTEES EXECUTORS LTD v NICHOLS [2023] NZHC 3289 [20 November 2023]

This judgment was delivered by me on 20 November 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Introduction

[1]                Trustees Executors Ltd (the applicant) is the trustee of the J C Nichols Kuriheka Trust (the Trust). It previously sought orders:

(a)permitting the applicant to provide compensation to one beneficiary and to give certain beneficiaries options to purchase Trust property;

(b)permitting the applicant to sell any remaining parts of the Trust property on the open market in the event the Trust property was not purchased by beneficiaries; and

(c)terminating the Trust after the sales had taken place, with the remaining Trust property to be vested in living contingent beneficiaries who were the great-grandchildren of the settlor in equal parts.

[2]                By a judgment earlier this year the Court made detailed orders permitting the applicant to take the steps it proposed to take.1

[3]                The directions made by the Court anticipated the applicant, upon implementing those directions, would need to apply for orders formally vesting in the contingent beneficiaries (live at the date of vesting) the Trust property, in equal parts.

Further directions sought

[4]                The applicant has now applied, pursuant to leave reserved, for the further directions it needs.

[5]                The request for further directions is supported by a (further) affidavit of Craig McAuliffe, a Trust Manager of the Dunedin branch of the applicant. Counsel for the applicant have also helpfully provided a memorandum in relation to the final directions now sought.

1      Re J C Nichols Kuriheka Trust, Trustees Executors v Nichols [2023] NZHC 43.

[6]                I am satisfied the orders now sought, as identified in “Draft Orders” filed on 14 November 2023 (Schedule A to this judgment) will appropriately give final effect to the Judgment delivered earlier this year.

Orders

[7]There are orders in terms of the Draft Orders set out in Schedule A.

[8]                I direct that the applicant provide copies of the sealed Order to the contingent beneficiaries by email to the addresses set out in the application dated 23 December 2023 or each other correct address as the applicant knows.

Osborne J

Solicitors:

Anderson Lloyd, Dunedin

Copy to:
N B Orbell, Respondent

SCHEDULE A

Before the Honourable Justice Osborne

After reading the Statement of Claim dated 23 December 2021, the Affidavit of Craig Thomas McAuliffe sworn 22 December 2021, the Further Affidavit of Craig Thomas McAuliffe sworn 30 March 2022, Submissions for the Applicant dated 27 June 2022, Supplementary Submissions for the Applicant dated 12 September 2022, the Amended Statement of Claim dated 12 September 2022, Further Affidavit of Craig Thomas McAuliffe sworn 12 September 2022, Memorandum of Counsel for the Applicant dated 16 December 2022, the Memorandum of Counsel dated 6 November 2023 and the Affidavit of Craig Thomas McAuliffe sworn 9 November 2023 this Court orders:

1The J C Nichols Kuriheka Trust is wound up.

2All remaining trust property is vested in the following contingent beneficiaries in equal parts:

(a)Timothy Joseph Cowie Nichols;

(b)Kathryn Mary Helen Tryfiatis;

(c)Harold Guy Nichols;

(d)Sarah Virginia Jane Simmons;

(e)Nicholas Bernard Orbell;

(f)Henry Simon Orbell;

(g)Nicola Anne Hedley;

(h)Susan Virginia Blake;

(i)David John Thacker;

(j)Christina Mary Lucas;

(k)Hans Cornelius van der Wilt;

(l)Arthur Mark van der Wilt;

(m)Anton David van der Wilt;

(n)Megan Elizabeth Nichols;

(o)Bronwyn Helen Nichols; and

(p)Hugh Charles Nichols.

3The following amounts will be offset against the relevant beneficiary’s contingent interest to account for the purchase of real property or items from the chattels housed within the real property (the collection):

(a)$2,500 will be offset against Timothy Joseph Cowie Nichols’ interest in the trust property for the purchase of a hand painted dresden [sic] porcelain plaque of “Saint Helena” in fine gilt frame;

(b)$43,000 will be offset against Megan Elizabeth Nichols’ interest in the trust property for the purchase of five items from the collection; and

(c)$130,000 will be offset against Hugh Charles Nichols’ interest in the trust property for the purchase of real property and the remainder of the collection.

Sealed by the High Court this  day of  2023

Signature:

(Deputy) Registrar