Vance v Turvey - [2024] NZHC 3772

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-000349

[2024] NZHC 3772

UNDER the Trusts Act 2019

IN THE MATTER OF

a blessing application in respect of the Orana Trust

BETWEEN

DAVID STUART VANCE and IAN RONALD MILLARD

Applicants

AND

DARYN TURVEY, PATRICIA TURVEY, GLENN TURVEY and

MICHELE HALCROW

Respondents

Hearing: 29 November 2024

Counsel:

J P Bell-Connell for Applicants D Turvey in person

Judgment:

11 December 2024

JUDGMENT OF GRAU J

An application to distribute a trust

[1] The two court-appointed trustees (the Trustees) of the Orana Trust (the Trust) seek the Court’s “blessing” to distribute the Trust’s remaining assets of around
$80,000.1

1 Associate Judge Paulsen granted leave to commence the proceedings by way of originating application in Vance v Turvey HC Wellington CIV-2024-485-349, 12 June 2024 (Minute of Associate Judge Paulsen).

VANCE v TURVEY [2024] NZHC 3772 [11 December 2024]

[2] The Trust in question is the last existing trust of the Turvey family. For some years, members of the Turvey family have been litigating disputes about the family’s financial arrangements in respect of this and other trusts, and they remain bitterly divided. The Trustees’ position is that the Trust fund is now all but exhausted and there is nothing to do but finally distribute and wind up the Trust.

[3] The respondents, Daryn Turvey, Patricia Turvey, Glenn Turvey, and Michele Halcrow, are the “Primary Beneficiaries” of the Trust.2 The Trustees have concluded the Primary Beneficiaries should now benefit from the distribution of the remaining assets of the Trust. They have made extensive enquiries to ensure the Trust has an accurate record of its assets, they have investigated the Trust’s potential claims as far as they could, and they have sought feedback from the Primary Beneficiaries on the proposed distribution before applying to the Court to “bless” their application under s 133 of the Trusts Act 2019 (the Act). The Trustees also ask the Court to direct that the distribution of the Trust fund be subject to an appropriate indemnity/waiver of liability by the respondent beneficiaries, in line with s 134 of the Act.

[4] Daryn is the only respondent who has taken part in this application. Daryn does not oppose the idea of the Trust’s assets being distributed and the Trust wound up, but his view is that the Trustee’s application is premature. Daryn believes there is money owed to the Trust and the Trustees should recover it before distributing and winding up the Trust. Daryn also says one of the Trustees, Mr Vance, has a conflict of interest in this case because Mr Vance was also a trustee of two other trusts associated with the Turvey family that Daryn says owed money to the Trust. Mr Vance applied to the Court to have the other trusts wound up by way of a similar blessing application, which was granted by Gendall J in 2022.3

Background

[5] The Trust was established by a Deed of Trust dated…

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 Vance v Turvey

Details

AGLC: Vance v Turvey [2024] NZHC 3772
Case: [2024] NZHC 3772
Decision Date: 11 December 2024

CaseChat Overview and Summary

In Vance v Turvey, the court considered an application by the trustees of the Orana Trust to obtain a blessing order to distribute the remaining trust assets of approximately $80,000. The applicants, David Stuart Vance and Ian Ronald Millard, were appointed trustees of the Orana Trust, the last existing trust of the Turvey family. The respondents, Daryn Turvey, Patricia Turvey, Glenn Turvey, and Michele Halcrow, are the primary beneficiaries of the Trust. The trustees sought the court's blessing to distribute the remaining assets of the Trust and for an order indemnifying them from any liability arising from the distribution. The respondents, particularly Daryn, opposed the application, arguing that the winding up of the Trust was premature and that there were significant debts owed to the Trust which should be pursued.

The court examined the trustees' decision-making process and the reasonableness of their proposed distribution. The trustees had undertaken extensive inquiries to ensure an accurate record of the Trust's assets, investigated potential claims, and sought feedback from the primary beneficiaries. The court found that the trustees had formed a reasonable opinion that the Trust's assets should be distributed now and the Trust wound up, given the limited remaining funds and the litigious history of the family. The court rejected Daryn's claims of conflict of interest and his assertions of debts owed to the Trust, finding that pursuing such claims would be futile and costly. The court concluded that the trustees' decision to distribute the remaining assets was reasonable and within the range of decisions a reasonable trustee could make.

The court granted the trustees' application, ordering that it was proper and lawful for the trustees to distribute and wind up the Orana Trust in accordance with the terms of the draft deed of distribution. The court also ordered that the trustees be indemnified from any liability arising from the distribution, except in cases of dishonesty, wilful misconduct, or gross negligence. The trustees were further entitled to be indemnified for their costs in relation to the application.

Orders