Winklemann - Te Ngakau Trust

[2021] NZHC 1080

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2020-463-40

[2021] NZHC 1080

IN THE MATTER OF

An application pursuant to sections 51 and 77 of the Trustee Act 1956 for appointment of a new Trustee and orders from the Court to authorise dealing with Trust property by paying funds to the Crown as unclaimed

monies

AND

An application by BRENT RETFORD WINKLEMANN in respect of the

TE NGAKAU TRUST

Applicant

Hearing:	10 December 2020
Appearances:	L A Foley and K H Tulloch-Otimi for the Applicant
Further information received:	22 December 2020
Reasons:	14 May 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 14 May 2021 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Application by Winklemann in respect of Te Ngakau Trust

[1]    The applicant, Brent Winkelmann, a partner of Le Pine & Co, solicitors in Taupō, has applied for various orders under the Trustee Act 1956 regarding an entity known as the Te Ngakau Trust (“the Trust”).

[2]    The application follows the death of Rowley Habib, a prominent Māori writer, who in the late 1970s appears to have established the Trust and who had sought the assistance of Le Pine & Co in relation to the Trust’s activities from the mid-1990s until his death. As a result of the assistance provided, Le Pine & Co has held funds on behalf of the Trust from 1996 to the present date and now needs the assistance of the Court in the absence of Mr Habib. To achieve this outcome, Mr Winklemann on behalf of the firm has sought orders:

(a)appointing him as a trustee pursuant to s 51 of the Trustee Act 1956; and

(b)seeking directions from this Court pursuant to ss 66 of the Trustee Act 1956 in order to disburse those funds and wind up the Trust.

Background

[3]    It appears from the somewhat scant information available that Mr Habib saw the establishment of the Trust as a type of micro-funding entity, a vehicle by which investors (predominantly Māori) could invest small amounts which could then be loaned out to support new ventures, also generally to Māori. While there is no suggestion that the Trust was not in fact established, its exact form and how the Trust was meant to operate is not known as no copy of the Trust Deed has been located. Instead, what was intended must be gleaned from a range of correspondence and other documents emanating from Mr Habib from the mid-1970s discussing his hopes and aspirations for the Trust, and through solicitors’ correspondence with Mr Habib, on such things as future incorporation of the Trust. There is also information about the monies held by the Trust at different times and where those monies originated.

[4]    From the information available it appears that Mr Habib was able to solicit contributions from a range of investors, mostly Māori, such that at the time Le Pine &

Co commenced acting for the Trust in May 1996 some $36,916.12 was transferred from the account of the Trust’s former solicitors.

[5]    Investments by the Trust of the type originally envisaged by Mr Habib do not seem to have eventuated. Instead there appear to have been only two significant transactions entered into by the Trust:

(a)In 1997, the Trust purchased a parcel of shares in the New Zealand Education and Tourism Corporation Ltd (“NETCOR”) for $25,000.

(b)In 2017, Mr Habib appears to have directed Le Pine & Co for the Trust to pay $5,500 to Quality Print on behalf of Mr Habib trading as O-A- Tia Publishers. The Le Pine & Co trust account notation records:

Note $5,500 pd to Quality Print for book printing fr 2904/1 R Habib (Te Ngakau Trust) to be repaid from sales and Interest.

[6]    In relation to these transactions Mr Winkelmann seeks direction from the Court to enable the sale of the NETCOR shares and to journal a credit currently held to the account of O-A-Tia Publishers to the Trust. With regard to the NETCOR shares, investigations undertaken by Le Pine & Co have shown that there is no ready market for the shares as NETCOR is not currently trading, but a purchaser has been located who is prepared to pay $5,000.00 which Le Pine & Co submits is the best available price.

[7]    For completeness, it is noted that after Mr Habib’s death Le Pine & Co has contacted Mr Habib’s executor, the Public Trust, who had no interest in attempting to resolve the Trust issues. Other friends, contacts and family members of Mr Habib have been contacted and there is otherwise no opposition to the application. In addition, the Attorney-General has also disclaimed any interest, noting that there is nothing to suggest the Trust had any charitable purpose.

Discussion

[8]    Having considered the application and evidence as filed and as amended by the oral application made by Ms Foley at the hearing on 10 December 2020, it is clear that

the orders sought are both necessary and appropriate. In particular, there appears no other method of releasing the Trust’s monies from Le Pine & Co trust account, and the proposed dispositions to the charitable organisations below best reflect the stated intention of Mr Habib. I therefore make the following orders:

(a)pursuant to s 51 of the Trustee Act 1956 I appoint Brent Retford Winkelmann, of Taupō, solicitor as the sole trustee of Te Ngakau Trust; and

(b)pursuant to s 66 of the Trustee Act 1956 I direct Mr Winkelmann to:

(i)sell the Trust’s shares in NETCOR at the best available price (namely the $5,000 currently on offer);

(ii)arrange for the transfer of the credit held to the account of O-A- Tia Publishers in the Le Pine & Co Trust Account to the Trust;

(iii)pay Le Pine & Co costs on this application calculated on a 2B basis;

(iv)pay out the balance of monies held by the Trust to one or more of the four charitable organisations identified in the memorandum of counsel dated 18 December 2020, namely Toi Māori Aotearoa, Māori Literature Trust, Mātātuhi Foundation and/or Te Kapua Whakapipi; and

(v)provide a written report to the Court within 10 working days of completing the tasks set out above detailing the transactions and showing final accounts for the Trust.

[9]    Unless otherwise directed by the Court, the Trust will then be wound up with effect one month after the filing of the report with the Court.

[10]   In the event that further directions are necessary to give effect to this judgment, leave is reserved for Mr Winkelmann to seek further directions.

Powell J