Turvey v Reeves - [2022] NZHC 760

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-000129

[2022] NZHC 760

BETWEEN
DARYN TURVEY

Plaintiff

AND

GRAEME REEVES

First Defendant

AND

CORNWALLIS TRUSTEES LIMITED

Second Defendant

AND

PATRICIA TURVEY

Third Defendant

Hearing: 21 March 2022 (by Microsoft Teams)

Appearances:

Plaintiff, self-represented

J L Forrest for First and Second Defendants
D P MacKenzie and K S Dixit for Third Defendant

Judgment:

12 April 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 April 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

TURVEY v REEVES [2022] NZHC 760 [12 April 2022]

[1] The plaintiff (Mr Turvey) commenced this proceeding seeking, principally, relief for various alleged breaches of trust and fiduciary duty. The claim, in so far as it relates to the first and second defendant, has been settled and stayed.1 This judgment concerns an application by the third defendant (Mrs Turvey) to strike out the proceeding and/or for summary judgment. The application is opposed by Mr Turvey.

The facts

[2]Mr Turvey is Mrs Turvey’s son.

[3] The Orana Trust was settled on 1 July 1996, with Mr Turvey and Mrs Turvey as the Trustees. They were also, along with others, both beneficiaries of the trust.

[4] Mr Turvey brings this proceeding as a beneficiary (and also a retired trustee) of the Orana Trust. He alleges Mrs Turvey committed numerous breaches of trust and fiduciary duty. These include, for instance, that she acquired a trust property by deceptive means and at an undervalue and then sold it for a considerable profit. Another allegation is that she has retained trust funds. It is also alleged she defended High Court litigation against the trustees when there was no valid defence available causing the Orana Trust to become insolvent. There are many more allegations also.

[5] From at least 2012, the relationship between Mr Turvey and Mrs Turvey deteriorated. This has resulted in a great deal of litigation, not only between them but also between entities with which they have been associated.2

[6] As a result of this dysfunction, in September 2013, Mr Turvey and Mrs Turvey appointed the second defendant, Cornwallis Trustees Ltd, to be an additional and independent trustee of the Orana Trust. The Trust Deed was varied at the same time to provide that where there were three or more trustees, the decision of the majority of them would be final. A further variation substituted a new trustees’ liability clause. That trustees’ liability clause is set out below.

1 Turvey v Reeves HC Wellington CIV-2019-485-129, 22 March 2022 (minute).
2 It is not necessary, for present purposes, to list all of the Court proceedings that are the result of the breakdown in the relationship between Mr Turvey and Mrs Turvey.

16TRUSTEES’ LIABILITY

16.1In carrying out the trusts and powers contained in this deed, no Trustee or former Trustee will be personally liable for any loss to the Trust Fund…

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 Turvey v Reeves

Details

AGLC: Turvey v Reeves [2022] NZHC 760
Case: [2022] NZHC 760
Decision Date: 12 April 2022

CaseChat Overview and Summary

This case concerns an application by Patricia Turvey to have Daryn Turvey's claim struck out and/or dismissed by summary judgment. Daryn, Patricia's son, is a beneficiary of the Orana Trust and has brought a claim against Patricia for breaches of trust and fiduciary duty. Patricia has argued that the claim should be struck out because it discloses no reasonable cause of action, is frivolous or vexatious, or is otherwise an abuse of process. The court found that while the claim was poorly drafted, it was not an abuse of process and so the application to strike it out was dismissed. The application for summary judgment was also dismissed. The court gave Daryn 42 days to amend his claim and, if it remained deficient, Patricia was permitted to renew the application for strike out. Costs were reserved.

Orders