Wiggins v Wiggins - [2024] NZHC 863

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2023-435-3

[2024] NZHC 863

BETWEEN
JENNIFER ANN WIGGINS

Plaintiff

AND

IAN WIGGINS

Defendant

Hearing: 18 April 2024

Appearances:

R Marsich for Plaintiff

D G Dewar for Defendant

Judgment:

19 April 2024

JUDGMENT OF CHURCHMAN J

[1] The plaintiff and defendant (the parties) are siblings. They are the children of the late Stuart and Catherine Wiggins.

[2] Stuart and Catherine Wiggins were the settlors of the Hamerton Trust (the Trust) which was established on 6 October 2008.

[3] Following the death of Stuart and Catherine in 2017 and 2018 respectively, the parties are now the sole trustees of the Trust. Until recently the accountants who had acted for Stuart and Catherine during their lives, through their trustee company BMWD Trustee Company 26 Ltd, had been the independent Trustee. The independent trustee resigned as a result of assertions of misconduct made by Jennifer Wiggins (Jennifer) and her lawyer.

WIGGINS v WIGGINS [2024] NZHC 863 [19 April 2024]

[4] Jennifer asserts that Ian has failed to communicate or work with her “on all critical Trust functions from routine administration to future planning”. Ian denies these allegations.

[5] Peta Walker, a chartered accountant with the firm B W Miller Dean Ltd whose Trustee company was the independent Trustee has filed an affidavit in these proceedings. She rejected Jennifer’s allegations saying “… it is quite untrue to say that Mr Ian Wiggins did not engage his responsibilities as a Trustee.” She described Jennifer in these terms “I confirm that the plaintiff has always disengaged from any Trust process. She did not accept signing authority over the Trust bank account when offered, she has declined to attend meetings, she has refused to sign and return annual accounts.” She also said “I had correspondence with Jennifer Wiggins and with her Lawyer. I have found them to be oppositional and confrontational.”

[6] Following the death of the parties’ mother, issues arose as to whether Jennifer should receive Stuart and Catherine’s house and the ownership of a rental property owned by the Trust.

[7] In 2022 the parties participated in mediation before a Mediator, Grant Allan, which resulted in a settlement. The effective result of that was that Ian was to sell to Jennifer his interest in their parent’s former family home. The purchase price of Ian’s half interest was to be funded through the Trust. It was also agreed that Jennifer would purchase the investment property from the Trust with that transaction also being funded by the Trust. The net result was that Jennifer became a debtor to the Trust and Ian a creditor of the Trust.

[8] The Trust receives regular income distributions from the nominee company which holds shares in W Wiggins Ltd as the Trustee for the Trust. Income distributions are received twice a year and can vary significantly in quantum. The mediated settlement contains a formula for the payment out to Jennifer and Ian of those distributions.…

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 Wiggins v Wiggins

Details

AGLC: Wiggins v Wiggins [2024] NZHC 863
Case: [2024] NZHC 863
Decision Date: 19 April 2024

CaseChat Overview and Summary

In Wiggins v Wiggins, the siblings Jennifer and Ian Wiggins, who are the sole trustees of the Hamerton Trust, brought a dispute to the High Court of New Zealand. Jennifer filed a statement of claim against Ian, seeking his removal as a trustee and the appointment of a new independent trustee. Ian defended the claims, arguing that mediation had already resolved the issues between them. Jennifer sought a direction for the parties to attend mediation under s 145(1)(b) of the Trusts Act 2019, claiming there was friction between the trustees leading to an impasse in the administration of the trust. The court examined whether the application met the criteria for mediation under the act and considered the potential futility of mediation without the nominee company being a party, as the nominee company's agreement was necessary for the proposed share division. The court concluded that the application for mediation was not appropriate, given the lack of urgency and the fact that mediation could not produce an enforceable outcome against the nominee company.

The primary legal issue in this case was whether the court should exercise its discretion to refer the parties to mediation under s 145 of the Trusts Act 2019. The court had to determine if the internal trust matter provided a basis for mediation and whether the mediation would be futile without the nominee company's participation. The court considered factors such as cost, confidentiality, speed, the seriousness and complexity of the matter, and the wishes of the parties. The court found that the application did not meet the criteria for mediation because it could not produce a binding outcome against the nominee company, making it potentially futile. Additionally, the court did not find the situation to be particularly urgent, noting that the delay in processing trust distributions was due to the resignation of the trust's accountants, a situation Jennifer had contributed to. Therefore, the court decided not to exercise its discretion to refer the parties to mediation.

The court dismissed Jennifer's application for a direction to refer the parties to mediation. The judge invited the parties to settle the costs between themselves but directed that if they failed to do so, Ian would file a memorandum of no more than three pages within 14 days, to which Jennifer would respond within five working days. The matter of costs would then be dealt with on the papers. The court's decision was based on the finding that the proposed mediation would be futile without the involvement of the nominee company, and there was no urgency in resolving the matter through mediation.

Orders