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Van Heeren v Hermans

Van Heeren v Hermans

Case [2023] NZHC 1557 23 June 2023

Trustee Duties

Breach of Trust

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1839

[2023] NZHC 1557

UNDER the Trusts Act 2019

IN THE MATTER

of an application under s 133 of the Trusts Act 2019

BETWEEN

ALEXANDER PIETER VAN HEEREN and BEATTIE RICKMAN TRUSTEE

COMPANY LIMITED as trustees of the Huka Trust

Applicants

AND

JOHANNA ALIDA MARIE HERMANS

First respondent

ALEXANDER PIETER VAN HEEREN

Second respondent

Hearing: 19 June 2023

Appearances:

K E Cornegé and R J Reeves for Applicants

M D Arthur and E G Littlewood for First Respondent

M D O’Brien KC and S D Williams for Second Respondent P J Napier and R Y Wang for the Kidd estate

Date of judgment:

23 June 2023

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 23 June 2023 at 11.am.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

VAN HEEREN v HERMANS [2023] NZHC 1557 [23 JUNE 2023]

[1] The trustees of the Huka Trust seek leave to commence a proceeding for orders under s 133 of the Trusts Act 2019 by way of originating application, and associated directions for service and confidentiality. The substantive proceeding would have its genesis in prior judicial determinations of matters between the now late Mr Kidd and Mr van Herren, including my interim judgment of 17 June 2021 determining the value of the two men’s partnership at the date of its dissolution on 18 January 1991.1

[2] Leave originally was sought without notice as is permitted,2 but served on Mr van Heeren’s former wife, Ms Hermans, and the related estate of the late Michael David Kidd on a Pickwick basis, meaning those parties may have appeared only to assist the Court to the extent they could or wished to do, given the absence of notice.3 Without their concession, I was not satisfied the application could properly be dealt with without notice.4

[3] Ultimately the application proceeded effectively on notice and is opposed in various respects by Ms Hermans. The Kidd estate seeks to intervene in support of the application. Mr van Heeren, while one of the Huka Trust trustees, also personally supports the application.

Background

[4] The partnership’s assets at the date of dissolution included some held by the Huka Trust,5 which owned an appurtenant ‘Owner’s Cottage’ prior to its sale in connection with that of Taupō’s Huka Lodge business and retains proceeds from that sale. Under South African law, I had found “as a matter of perfect fairness and good faith, … Mr van Heeren acquired the Owner’s Cottage for the partnership”.6

[5] The partnership’s final accounting remained for determination.7 The Kidd estate and Mr van Heeren since have settled issues between them as part of a larger

1      Kidd v van Heeren [2021] NZHC 1414.
2      High Court Rules 2016, r 19.5(2).
3      Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213 (Ch) at 1214–1215.
4      Trustees of Huka Trust v Hermans

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 Heeren v Hermans

Details

AGLC: Van Heeren v Hermans [2023] NZHC 1557
Case: [2023] NZHC 1557
Decision Date: 23 June 2023

CaseChat Overview and Summary

The High Court of New Zealand considered an application by the trustees of the Huka Trust to commence a proceeding under section 133 of the Trusts Act 2019. The application, which sought directions for service and confidentiality, was brought by the trustees in their capacity as trustees of the Huka Trust, against Johanna Alida Marie Hermans and Alexander Pieter van Heeren. The Kidd estate also sought to intervene in support of the application. The proceeding originated from prior judicial determinations between the late Michael David Kidd and Mr van Heeren, including the interim judgment of 17 June 2021, which determined the value of the partnership at the date of its dissolution.

The primary legal issue the court had to decide was whether the proceeding could be commenced by originating application. Under the High Court Rules 2016, a proceeding brought under the Trusts Act is eligible to be commenced by originating application if it is in the interests of justice to do so. The Court of Appeal has noted that proceedings under the Trusts Act may be commenced by originating application if it is in the interests of justice, and if the proceeding is not one of those mentioned in the High Court Rules 2016.

The court found that the proceeding could not be commenced by originating application. The issues to be determined were not confined or clearly defined, and the proceeding involved multiple parties with a possibility of crossclaims or counterclaims. The originating application procedure is not well suited to cases involving substantive rights, multiple parties, or disputed factual issues. The court also noted that the proceeding was not urgent, and there was no significant countervailing factor to permit the proceeding to be commenced by originating application. Therefore, the court dismissed the trustees' principal application.

In relation to the confidentiality of certain documents, the court made orders that the documents exhibited at pages AVH-001, AVH-030, AVH-163, and AVH-168 to Mr van Heeren’s affidavit sworn on 23 September 2022 not be accessed or published without the permission of a judge. The court considered that the documents were confidential to the parties of the settlement agreement and had the requisite quality of confidence. The court also found that there was no legitimate public interest in the content of the documents, and that the protection of confidentiality and privacy interests was furthered by making the sought orders in relation to the identified documents.

In conclusion, the court dismissed the trustees' principal application and made confidentiality orders in relation to certain documents. The court reserved the issue of costs for determination on short memoranda if the parties could not agree on the costs liability.

Orders