White v White
[2025] NZHC 1557
•16 June 2025
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2025-441-014
[2025] NZHC 1557
UNDER Part 18 of the High Court Rules 2016 IN THE MATTER OF
an application under the Trusts Act 2019
BETWEEN
JEREMY PHILIP WHITE
Plaintiff
AND
GREGORY PETER WHITE
First Defendant
AND
STEPHEN PETER LUNN
Second Defendant
Hearing: 12 June 2025 Appearances:
D M Kerr for Plaintiff
Judgment:
16 June 2025
JUDGMENT OF CHURCHMAN J
Introduction
[1] The plaintiff seeks the removal of one or, alternatively, all of the trustees of the PG White Childrens Trust (the Trust) under Part 18 of the High Court Rules 2016 and the Trusts Act 2019 (the Act). The particular orders sought are:
(a)An order under s 112 of the Act removing Gregory White (the first defendant) as a trustee of the Trust.
(b)Alternatively, an order under s 112 of the Act removing all current trustees of the Trust and appointing the Public Trust (or such other
WHITE v WHITE [2025] NZHC 1557 [16 June 2025]
trustee as the Court thinks fit) as replacement trustee under s 114 of the Act.
(c)An order vesting the property of the Trust in the continuing or replacement trustee(s) pursuant to s 116 of the Act.
(d)Costs against the first defendant personally or, in the alternative, costs to be met from the assets of the Trust.
[2] On 24 February 2025, Justice La Hood directed the proceeding be served on the first and second defendant, and the Public Trust. Neither defendant has filed or served a statement of defence. The plaintiff has now applied for the proceeding to be dealt with by way of formal proof and seeks judgment by default pursuant to r 15.9 of the High Court Rules.
Background
[3] The plaintiff and the first defendant are both trustees and final beneficiaries of the Trust. The first defendant resides in Australia. Stephen Lunn (the second defendant) was the late P G White’s lawyer and is a trustee of the Trust. The plaintiff and first defendant are the only children of the late P G White, the settlor of the Trust.
[4] The Trust was settled by way of deed of trust dated 16 June 2015 (Trust Deed). The Trust assets include a farm property at Pirau Road, Fernhill (Farm) and a lifestyle block adjacent to the Farm (House Block).
[5] The discretionary beneficiaries of the Trust include the plaintiff, the first defendant and their respective issue, any trust and/or company in which they hold a beneficial interest, and any charitable entity.
[6] The plaintiff and the first defendant agreed to distribute the assets of the Trust equally between them in their capacity as final beneficiaries of the Trust. The distribution would occur when the subdivision of the farmland, of which the Farm was a part, was complete. The second defendant supported that proposition.
[7] With the agreement of the first defendant subdivision of the farmland commenced and the plaintiff obtained a mortgage from Heartland bank secured against the House Block. The plaintiff intended that the mortgage would be repaid once the Trust assets were realised.
[8] In November 2022, the first defendant refused to sign documents for the auction of the Farm. When Cyclone Gabrielle caused damage to the Farm in February 2023, the first defendant ceased communication with the plaintiff about repair works and did not assist with repairs.
[9] On 13 June 2024, an offer of $1,350,000 was received for the Farm from an adjoining landowner. The plaintiff wished to accept that offer but the first defendant refused to accept an offer less than $1,500,000. In August 2024, the second defendant emailed the first defendant to confirm whether he was prepared to accept $1,350,000 as a purchase price. The first defendant, however, failed to engage with the second defendant. Since then, the plaintiff has attempted to contact the first defendant to seek agreement to sell the Farm. The first defendant, however, has ceased communicating with the plaintiff regarding assets of the Trust.
[10] On 4 October 2024, the plaintiff’s lawyer wrote to the first defendant confirming his responsibilities as a trustee of the Trust and seeking his cooperation. The plaintiff’s lawyer requested a response within 10 working days from the date of the letter. The first defendant did not respond, despite confirming with the plaintiff that he had received the letter. On 30 October 2024, the plaintiff’s solicitor emailed the first defendant to inform him that the plaintiff would be proceeding with a Court application. The first defendant did not respond to the email.
Plaintiff’s submissions
[11] Mr Kerr, for the plaintiff, submits the first defendant has breached his duties as a trustee and prevented the proper administration and distribution of the Trust assets in relation to attempts to sell the Farm. The plaintiff contends that the trustees have the following duties:
(a)a duty to act in accordance with the terms of the trust;
(b)a duty to act honestly and in good faith;
(c)a duty to hold or deal with trust property and otherwise act for the benefit of the beneficiaries, in accordance with the terms of the trust;
(d)a duty to avoid a conflict between their interests as trustees and the interests of the beneficiaries; and
(e)a duty to act unanimously.
[12] The plaintiff submits the first defendant has breached one or more of these duties by failing to engage with the trustees, the Trust’s accountants, lawyers, real estate agents and bankers. The plaintiff notes that the first defendant has not engaged with ASB Bank to provide information pursuant to the Anti-Money Laundering and Countering Financing of Terrorism Act 2009. As a result, the Trust has become unable to operate, including receiving any rental income and paying tax.
[13] The plaintiff argues the lack of communication from the first defendant has caused the risk of real prejudice to the trust and, thereby, the interests of its beneficiaries. The plaintiff highlights that the first defendant’s lack of cooperation with ASB Bank has caused the bank to issue notice that the Trust’s accounts (into which its rental revenue is paid) will be closed.
[14] The plaintiff argues the Trust cannot be properly administered nor the interests of the beneficiaries protected due to the obligation of the trustees to act unanimously. The plaintiff submits that the removal of the first defendant is necessary and desirable as it will enable the remaining trustees to complete the administration and distribution of the Trust’s assets for the benefit of the final beneficiaries.
[15] The plaintiff and second defendant wish to sell the farm and wind up the Trust to distribute the net assets equally between the plaintiff and the first defendant. The plaintiff claims the removal of the first defendant as a trustee will not prejudice his interests as a beneficiary vis-à-vis the other final beneficiary, the plaintiff.
Relevant law
[16]Rule 15.9 of the High Court Rules 2016 states:
15.9 Formal proof for other claims
(1) This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.
…
(4)The plaintiff must, before or at the formal proof hearing, file affidavit evidence establishing, to a Judge’s satisfaction, each cause of action relied on and, if damages are sought, providing sufficient information to enable the Judge to calculate and fix the damages.
…
[17] The Court of Appeal defined the phrase “satisfaction” as for a Judge to “make up their mind” — it does not import notions of the burden of proof and of setting a particular standard of proof.1
[18] The Court in Lambert v River proceeded on the basis that, in accordance with the general principle in civil proceedings, a party wanting to prove a fact should do so on the balance of probabilities.2 The Court stated that the purpose of r 15.9 was to serve the interests of a plaintiff where a defendant has refused to engage with litigation. While the plaintiff must show the key elements of their claim are proven, they are not required to disprove unsubstantiated and unproven claims of an absent defendant.3
[19] Section 112 of the Act allows the Court to make an order removing a trustee whenever it is necessary or desirable to remove a trustee and it is difficult or impracticable to do so without the assistance of the Court.
1 R v Leitch [1998] 1 NZLR 420 (CA) at 428.
2 Lambert v River [2024] NZHC 1690 at [25].
3 At [24].
[20] The Court must assess an application for the removal of a trustee on the basis of whether it would be beneficial to the welfare of the beneficiaries,4 and whether it is expedient for the proper execution of the trust.5
Analysis
[21] I must determine whether I am satisfied the plaintiff has established that the first defendant has breached his duties as a trustee in a manner that entitles the plaintiff to relief under s112 of the Act.
[22] Having reviewed the extensive affidavit evidence of the plaintiff, I am satisfied that the defendant has breached his duties as a trustee by refusing to participate in the management and administration of the Trust as well as in the final distribution of the Trust assets. The relevant duties are the duty to act in good faith and the duty to deal with trust property and otherwise act for the benefit of the beneficiaries. Those duties are mandatory under the Act.6
[23] I accept with the plaintiff’s submissions that the lack of communication has prevented the trustees from finalising the sale of the Farm, making any effective decisions on behalf of the Trust and the final distribution of the assets of the Trust.
[24] I accept the lack of any communication between the first defendant and the other trustees has detrimentally impacted the Trust and the interests of the final beneficiaries. It has prevented the plaintiff and the second defendant from discharging their duty to act unanimously and for the benefit of the beneficiaries.
[25] It is clear that the administration of the Trust has been delayed by the first defendant since at least October 2024 when the first defendant ceased communication with the plaintiff. It is now June 2025 and the trustees have been unable to effectively administer the Trust for the benefit of the beneficiaries.
4 Wallace v Naknok [2012] NZHC 382 at [10].
5 Hall v Radich-Chaytor [2020] NZHC 409 at [46].
6 Trusts Act 2019 ss 25 and 26.
[26] I am satisfied on the balance of probabilities that the plaintiff has established it is desirable to remove the first defendant as a trustee and it is difficult or impracticable to do so without the assistance of the Court.
[27] I consider this course of action would best facilitate the administration of the trust. It is in the best interests of the beneficiaries to allow the remaining trustees to sell the Farm and to wind up the Trust to distribute the net assets equally to the final beneficiaries.
[28] Given that the breaches by the first defendant have put the Trust to the unnecessary expense of having to bring these proceedings, it is appropriate that the first defendant pay costs.
[29]In light of the findings above, I make the following orders:
(a)An order under s 112 of the Act removing the first defendant, Gregory White, as the trustee of the Trust.
(b)An order vesting the property of the Trust in the remaining trustees.
(c)An award of costs against the first defendant on a Category 2B basis together with necessary disbursements.
Outcome
[30]The application is granted.
Churchman J
Solicitors:
Bramwell Bate, Hastings for Plaintiff
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