Walker v Restieaux - [2015] NZHC 1875

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-31 [2015] NZHC 1875

BETWEEN
JEFFREY BERNARD WALKER

First Plaintiff

ALEXANDER JAMES RESTIEAUX and ANN ELIZABETH RESTIEAUX and CARGILL TRUSTEES LIMITED as Trustees of the Beacon Downs Trust Second Plaintiffs

AND

AINSLEY FAY RESTIEAUX, NADINE ANN TOMLINSON, GRANT PETER RESTIEAUX AND STEPHEN ALEXANDER RESTIEAUX

Defendants

Hearing:
10 August 2015

(On the papers)

Counsel:

D Robinson for Plaintiffs

G Mirkin as Court appointed Counsel for any discretionary or unascertained beneficiaries (other than Defendants)

Judgment:

10 August 2015

JUDGMENT OF DAVIDSON J

Background

[1] This is an application for the rectification of an express trust due to a mistaken use of a term in the Trust Deed. The Trust Deed in question is for the Beacon Downs Trust (the Trust), dated 16 March 2003.

[2] Alexander James Restieaux and Ann Elizabeth Restieaux farm the property at
Beacon Downs Farm, the property settled on trust. Mr Restieaux was originally the sole registered proprietor of the property. On 9 February 1983 he sold an undivided

WALKER & ORS v RESTIEAUX & ORS [2015] NZHC 1875 [10 August 2015]

half share of the property to the A J Restieaux Family Trust, a trust settled by deed on that same day. The property was later transferred to a partnership comprising Mr Restieaux and the A J Restieaux Family Trust in equal shares. This was known as the A J Restieaux and Trust Partnership.

[3] The property was held under this arrangement until 2003. After speaking to Mr Restieaux’s sister, Judith Restieaux (a solicitor), Mr and Mrs Restieaux made the decision that they would prefer a holding structure which would allow both to fully participate in the assets. At the time, Judith Restieaux practised in partnership with a Jeffrey Walker, the settlor of the Trust.

[4] Upon settlement of the Trust, the property was sold to the Trustees of the Beacon Downs Trust by the partners in the A J Restieaux and Trust Partnership pursuant to an Agreement for Sale and Purchase of Real Estate dated 28 March 2003. The purchase was funded by money advanced jointly by the A J Restieaux Family Trust and Mr Restieaux. The Trust Deed for this trust is the subject of these proceedings.

The Trust Deed

[5] The Trust Deed describes the parties as:

PARTIES

1. JEFFREY BERNARD WALKER of Invercargill, Solicitor (“the
Settlor”).

2. ALEXANDER JAMES RESTIEAUX of Wairuna, Farmer (“the
First Trustee”).

3. ANN ELIZABETH RESTIEAUX of Wairuna, Farmer (“the
Second Trustee”).

3. CARGILL TRUSTEES LIMITED at Invercargill (“the Third
Trustee”).

[6] The named beneficiaries of the trust are provided in cl 4:

4. BENEFICIARIES

4.1 The Beneficiaries Are All Or Any Of:

a. ALEXANDER JAMES RESTIEAUX.

b. ANN ELIZABETH RESTIEAUX.

c. The Final Beneficiaries.

d. Any children including any adopted or stepchildren of a
Final Beneficiary

…

[7] The Final Beneficiaries are defined as “the children of Alexander James

Restieaux and Ann Elizabeth Restieaux”.

[8] Of most importance to the current…

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 Walker v Restieaux

Details

AGLC: Walker v Restieaux [2015] NZHC 1875
Case: [2015] NZHC 1875
Decision Date: 10 August 2015

CaseChat Overview and Summary

This case involved an application for the rectification of an express trust due to a mistaken use of a term in the Trust Deed for the Beacon Downs Trust. The Trust was settled on 16 March 2003 by Alexander James Restieaux and Ann Elizabeth Restieaux. The plaintiffs sought to have the Trust Deed rectified to express the intention behind the settling of the Trust, which was to provide for asset planning and allow the Restieauxes to participate in the trust as discretionary beneficiaries. The main issue was whether the Restieauxes were intended to be excluded as beneficiaries under cl 14.1(c) of the Trust Deed. The court found that the Trust Deed was not intended to exclude the Restieauxes as beneficiaries and granted the order to rectify cl 14 of the Trust Deed. The court also granted relief from personal liability to the plaintiffs for any distributions made to the Restieauxes up to the date of rectification.

The plaintiffs in the case of Walker v Restieaux sought an order that the Trust Deed be rectified to express their intention on settling the Trust. The object of such a claim is to bring the document which was expressed and intended to be in pursuance of a prior agreement into harmony with that prior agreement. The court found that the Trust Deed was not intended to exclude the Restieauxes as beneficiaries and granted the order to rectify cl 14 of the Trust Deed. The court also granted relief from personal liability to the plaintiffs for any distributions made to the Restieauxes up to the date of rectification. Costs incidental to this proceeding were to be paid from the assets of the Trust on an indemnity basis.

Orders