Turvey v Vance - [2022] NZHC 1167

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-586 [2022] NZHC 1167

UNDER the Trusts Act 2019

IN THE MATTER OF

the F B Turvey Family Trust and the P Turvey Family Trust

BETWEEN

DARYN TURVEY

Applicant

AND

DAVID VANCE

Respondent

CIV-2022-485-041

UNDER

the Trusts Act 2019

IN THE MATTER OF

an application for the directions in respect of the FB Turvey Family Trust and the P Turvey Family Trust

BETWEEN

DAVID VANCE

Applicant

AND

PATRICIA TURVEY, DARYN TURVEY, GLENN TURVEY and MICHELE HALCROW

Respondents

Hearing: 16 May 2022

Appearances:

Applicant in proceeding 586 D Turvey in Person

J P Bell-Connell for Mr Vance the Applicant in proceeding 41 G J Woollaston for Interested Party Patricia Turvey

Judgment:

3 June 2022

JUDGMENT OF GENDALL J

DARYN TURVEY v DAVID VANCE [2022] NZHC 1167 [3 June 2022]

Solicitors:
Dentons Kensington Swan, Wellington Dewhirst Law, Palmerston North

Table of Contents

Introduction  [1]
Background facts  [6]
The 2020 Judgment  [15]
The present applications  [19]
“Blessing” application  [22]
Preliminary issue — rectification of an error in documents executed by the settlors     12
Mr Vance’s proposed distribution  14

Adjustments to distributions to each beneficiary 17

Patricia’s $200,000 adjustment for failure to maintain the Property 18

Patricia’s failure to pay rates on the Property 20

Patricia’s and Glenn’s use of the time share 20

Patricia’s receipt of rental income 20

Daryn’s maintenance of and improvements to the Property 22
Daryn’s allegations of abuse 23
Daryn’s loan of $65,050 to the trusts relating to the mortgage over the property 24

Daryn Turvey — a notional settlor? 26

Conclusion [102]

Daryn’s s 126 Applicaton 29

Costs 29

Introduction

[1] These proceedings involve the Turvey family, members of whom have been engaged in bitter and acrimonious litigation over some time. This judgment relates to two applications:

(a)The first is an application in proceeding CIV-2022-485-000041 (proceeding 41) by David Vance (Mr Vance) under s 133 of the Trusts Act 2019 (the Act) brought by him as the recently court- appointed trustee of two Turvey family trusts (the Trusts) which for some time have held family assets. Under this application, Mr Vance seeks a “blessing” for his proposed distribution of those remaining trust assets. This application, for the purposes of making that distribution, also includes a further application to rectify an earlier error in documents executed by the settlors of the Trusts.

(b)The second is an application in proceeding CIV-2021-405-586 (proceeding 586) bought by the applicant, Daryn Turvey (Daryn), pursuant to s 126 of the Act. This application seeks an order that Mr Vance make final distributions from the Trusts equally to named beneficiaries being Daryn, his brother and sister (with several minor exceptions), in accordance with what he says were earlier orders made by this Court on 16 September 2020.

[2] The earlier 16 September 2020 orders were contained in a reserved judgment of Dobson J (the 2020 Judgment) which followed a strongly contested proceeding involving Daryn and his mother,…

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 Vance

Details

AGLC: Turvey v Vance [2022] NZHC 1167
Case: [2022] NZHC 1167
Decision Date: 3 June 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Turvey v Vance dealt with the winding up of the FB Turvey Family Trust and the P Turvey Family Trust, with Daryn Turvey and David Vance as the key parties involved. The central legal issue was whether the proposed distribution of the trusts' assets by the trustee, David Vance, was reasonable and in line with the trustees' duties. The court had to consider whether Mr Vance's proposed distribution, which involved adjustments based on factors such as property maintenance, rental income, and personal loans, was justifiable. The court also had to determine whether certain beneficiaries, like Daryn Turvey, could be disqualified from benefiting from the trusts due to their actions or contributions.

The court found that Mr Vance's proposed distribution was reasonable and aligned with the trustees' duties, taking into account the specific circumstances of the trusts and the intentions of the settlors. The court upheld most of Mr Vance's adjustments to the distributions, such as deductions for property maintenance and outstanding rates, and agreed with his decision not to make adjustments for rental income and unsubstantiated abuse claims. The court also concluded that Daryn Turvey's loan to the trusts should be recognised and repaid, but due to the limitation period, his status as a beneficiary was affected. Ultimately, the court ordered that Daryn's share of the distribution should pass to a trust for his daughters upon them reaching the age of 18. The court granted Mr Vance's application for directions under section 133 of the Trusts Act 2019, with the noted amendment, and dismissed Daryn's application under section 126 of the Act. Costs were reserved for further discussion between the parties.

Orders