Turvey v Turvey - [2020] NZHC 2403

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-175

[2020] NZHC 2403

UNDER section 19 of the Administration Act 1969

BETWEEN

PATRICIA TURVEY

Plaintiff

AND

DARYN ALAN TURVEY

Defendant

CIV-2018-485-849

UNDER

the Trustee Act 1956

BETWEEN

PATRICIA TURVEY

Applicant

AND

DARYN ALAN TURVEY

First Respondent

CORNWALLIS TRUSTEES LIMITED

Second Respondent

Hearing: 7 September 2020

Appearances:

G J Woollaston for plaintiff/applicant Defendant/first respondent in person No appearance for second respondent

Judgment:

16 September 2020

RESERVED JUDGMENT OF DOBSON J

TURVEY v TURVEY [2020] NZHC 2403 [16 September 2020]

Introduction

[1] These two proceedings were brought on for hearing pursuant to a direction that they be heard together, but not formally consolidated. The plaintiff/applicant (Mrs Turvey) is the widow of Francis Bernard Turvey (the deceased) who died in September 2007. The defendant/first respondent is Mrs Turvey’s and the deceased’s son (Daryn).

[2] In the first intituled proceeding (the estate claim) Mrs Turvey seeks orders removing Daryn as the sole trustee and executor of the estate of the deceased and appointing her to that position, with those changes deemed to have taken effect from the date of the deceased’s death. No application for a grant of probate in the deceased’s estate has been made by Daryn. There are diametrically opposed claims advanced by each of them in respect of Daryn’s neglect of his obligations as trustee and executor of the deceased’s estate and, on Daryn’s account, wrongful appropriation of estate assets and frustration of all attempts to administer the estate by Mrs Turvey and Daryn’s brother, Glenn, with whom she is aligned. Daryn’s claims are advanced in a counterclaim originally incorporated in his statement of defence.

[3] There is a preliminary issue in respect of the estate claim, given that a notice of discontinuance had been filed on Mrs Turvey’s behalf on 12 December 2019. Daryn, acting for himself, opposed the discontinuance being finalised until costs claims were dealt with. He also sought acknowledgements as to his continuing status as a trustee.1

[4] In the second proceeding (the trusts claim), Mrs Turvey commenced an originating application seeking orders under s 43 of the Trustee Act 1956 for Daryn’s removal as a trustee of each of two mirror trusts that were formed by her and the deceased in May 1989. The only asset of those trusts appears to be a residential property at 227 Marine Drive, Lowry Bay. The trustees of each of the trusts are registered as proprietors of that property as tenants in common in equal shares.

1 Given the extent of cross-over between the two proceedings, this concern may well have been in respect of (and arguably extended to) Daryn’s position as trustee of the mirror trusts relevant to the second proceeding.

[5] Daryn was appointed as a co-trustee with Mrs Turvey in December 2007, some three months after the death of the deceased.

[6] In recent years, an independent solicitor, Mr Graeme Reeves, acting through a trust company he controlled,…

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 Turvey

Details

AGLC: Turvey v Turvey [2020] NZHC 2403
Case: [2020] NZHC 2403
Decision Date: 16 September 2020

CaseChat Overview and Summary

The proceedings were brought by Patricia Turvey against her son, Daryn Alan Turvey, in relation to the estate of the deceased, Francis Bernard Turvey, and two mirror trusts formed by Patricia and the deceased. Patricia sought orders removing Daryn as the sole trustee and executor of the estate and appointing her to that position, as well as orders for Daryn’s removal as a trustee of the mirror trusts and the appointment of an independent trustee. The court had to determine whether Daryn should be removed as the executor of the estate and as a trustee of the trusts, and if so, who should replace him.

The court found that Daryn should remain as the executor of the estate but should be removed as a trustee of the trusts. The court directed that Daryn should elect whether to make an application for a grant of probate of the estate by 29 January 2021, and ordered that Mrs Turvey and Glenn account to Daryn for any assets, or the proceeds of any assets, of the estate that have been, or are, held by them. The court also ordered that the property at 227 Marine Drive, Lowry Bay be transferred into the name of the new trustee, and that the new trustee determine whether the property should be renovated prior to being marketed and is authorised to secure borrowings against the property for that purpose and proceed with its sale. The new trustee is also charged with reviewing the management of the trusts by current trustees to assess responsibility for any impairment to its value, and is to provide a full accounting for the terms on which any letting of the property has been undertaken, and the income and expenditure related to that.

There will be no order as to costs in the trusts claim, but Daryn is entitled to reimbursement of disbursements relevantly incurred in relation to the estate claim.

Orders