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,…
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- AGLC
- Turvey v Turvey [2020] NZHC 2403
- Case
- [2020] NZHC 2403
- Decision Date
CaseChat Overview and Summary
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
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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