Van Dam v Went - [2015] NZHC 1457

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1270 [2015] NZHC 1457

IN THE MATTER of the Adriaan Went Family Trust

BETWEEN

DAVID PAUL VAN DAM and ALAN RICHARD HALL as Trustees of the Adriaan Went Family Trust

Applicants

AND

JEROEN JACOB WENT and HELENE LORETTE SMITH

Respondents

Hearing: 28 October 2014 and 17 March 2015

Appearances:

P T Hall and E R McKibbin for Applicants
V T Bruton and L C Black for First Named Respondent
W M Patterson for Beneficiary

Judgment:

26 June 2015

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 26 June 2015 at 11 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Simpson Western, Auckland TGT Legal, Auckland Patterson Hopkins, Auckland

VAN DAM v WENT [2015] NZHC 1457 [26 June 2015]

[1] This judgment determines two applications regarding the provision of documents to beneficiaries of the Adriaan Went Family Trust (“trust”).

Applications

[2] The Applicants, Mr Van Dam and Mr Hall, are the trustees of the trust and, by originating application (“trustees’ application”),1 they seek directions as to whether they are required to disclose financial statements of Ch’i International Limited (“Ch’i”) to the Respondents (“Mr Went” and “Mrs Smith”), who are beneficiaries of the trust.

[3] Although Mr Went has previously sought, and now seeks, provision of these documents, for some reason he opposes the application.

Mr Went’s application

[4] In the second application, Mr Went seeks orders appointing him a trustee of the trust and for disclosure of various categories of documents. I am only required to determine that part of the application which concerns disclosure of documents.

[5] The trustees oppose this application, Mrs Smith supports it.

[6] I adjourned the hearing of the applications pending service of Mr Went’s application on affected parties, including Mr Ray Nicholls and other trustees of the Echo Trust (see below). Mr Went then filed and served an amended application dated 30 October 2014, the trustees of the Echo Trust and others served advised that they did not wish to be heard, and the hearing resumed.

Background

[7] The following appears from the affidavits that have been filed.

[8] Mr Adriaan Went (“Mr Went Snr”) settled the trust on 1 March 2002.2
Mr Went Snr was a trustee and discretionary beneficiary of the trust until his death on 1 February 2011.

1 Originating Application dated 23 May 2014, pursuant to s 66 Trustee Act 1956.
2 Deed of Trust dated 1 March 2002.

[9] At the heart of these applications is the trust’s interests in Ch’i, which Mr Went Snr established in 1987. Ch’i produces and sells bottled mineral water, the source of which is a spring situated on land in Auckland (“land”).

Trustees

[10] Mr Van Dam has been a trustee since the trust was settled. He was Ch’i’s

Operations Manager from 1992 until he left the business (on good terms) in 2010.

[11] Mr Hall, the other trustee, is a chartered…

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 Van Dam v Went

Details

AGLC: Van Dam v Went [2015] NZHC 1457
Case: [2015] NZHC 1457
Decision Date: 26 June 2015

CaseChat Overview and Summary

The High Court of New Zealand adjudicated on two applications relating to the Adriaan Went Family Trust, with David Paul Van Dam and Alan Richard Hall as trustees seeking direction on whether they were required to disclose certain financial statements and other documents to beneficiaries, Jereom Jacob Went and Helene Lorette Smith. Jereom Jacob Went also sought orders for his appointment as a trustee and for the disclosure of various categories of documents. The court was required to determine the extent to which the trustees were obligated to disclose documents to the beneficiaries. The court held that while beneficiaries have a right to ensure that trustees are held accountable, this right is not absolute and must be balanced against the established principle that trustees exercising discretionary powers are not bound to disclose to beneficiaries the reasons behind their decisions. The court found that certain documents were necessary to enable the beneficiaries to satisfy themselves as to the management of trust assets and ordered the trustees to disclose specific categories of documents. However, the court declined to order the disclosure of other documents sought by the beneficiaries. The court noted that the tone of some correspondence from the beneficiaries' legal advisers was peremptory and lacking in objectivity and advised against such conduct in the future. The court reserved leave to apply for further orders as to the form or method of disclosure and reserved costs.

Orders