White v S R Hamilton Corporate Trustee Ltd

[2016] NZHC 1409

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-434 [2016] NZHC 1409

BETWEEN

STEPHEN ROYCE WHITE AND

MAUREEN EDITH PARSONS Plaintiffs

AND

S R HAMILTON CORPORATE TRUSTEE LTD AND LAMB TRUST SERVICES LTD

Defendants

Hearing:	4, 5, 6, 7 April 2016
Counsel:	R Connell for Plaintiffs E J Hudson and D Reynolds for Defendants
Judgment:	27 June 2016

JUDGMENT OF HEATH J

This judgment was delivered by me on 27 June 2016 at 11.00am pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Lamb Bain Laubscher, Te Kuiti Connell & Connell, Auckland Whitehead Braun, Hamilton Counsel:

E J Hudson, Hamilton

WHITE AND PARSONS v S R HAMILTON CORPORATE TRUSTEE LTD AND LAMB TRUST SERVICES LTD [2016] NZHC 1409 [27 June 2016]

[1]      Mr Stephen White and Ms Maureen Parsons are two of three residuary beneficiaries of a trust settled by their late parents; the WHR and ZD White Family Trust (the Trust).  They brought this proceeding in an attempt to remove the present trustees, SR Hamilton Corporate Trustee Ltd and  Lamb Trust Services  Ltd (the trustees).

[2]      Mr  White  and  Ms  Parsons  allege  that  the  trustees  have  misconducted themselves.  Primarily, the alleged misconduct involves inappropriate collusion with the third residuary beneficiary (their sister, Dr Jocelyn Chambers) during the time that the trustees were taking steps to sell the major asset, a property situated at 4

Grace Avenue, Mt Maunganui.

[3]      During the course of the hearing, it became clear that there was no substitute trustee available.   Public Trust, which had signalled a willingness to assume trusteeship if appointed by the Court, had consented on the basis of a number of conditions designed to protect it from any potential liability arising out of conflict among the three residuary beneficiaries.  Having made further inquiries to ascertain whether Public Trust would accept appointment without conditions, Mr Connell, for Mr White and Ms Parsons, advised me that it would not.

[4]      Although Mr Connell sought to obtain consent from alternative trustees, the hearing had reached the point where I was able to put to counsel a means by which the real issues between the parties could be resolved without the need for an inquiry into the conduct of the trustees, and without their removal.   Mr Connell accepted that, in the unusual intervening circumstances, it was appropriate for this proceeding to be dismissed and for the critical issues to be resolved on a separate application for directions that had been made by the trustees, under s 66 of the Trustee Act 1956.

Contemporaneously, I am giving judgment on that application.1

[5]      Judgment is entered in favour of the trustees in this proceeding, with costs reserved.  My provisional views on costs, in respect of both proceedings, are set out

in my judgment on the application for directions.2

P R Heath J

Delivered at 11.00am on 27 June 2016