Trustee Discretion: Perpetual Trust v. Cooke

  

Brian Cooke’s threat to smash in the head of a Perpetual Trust staff member tasked with handling his late mother’s estate set the tone for a difficult relationship, with the Court of Appeal subsequently ruling there was no criticism of the manner in which Perpetual sold his mother’s Orewa home, but it was not appropriate to evict Mr Cooke from his life interest in her Wellsford rural property.

In court, Mr Cooke claimed Perpetual had not done a proper job handling his late mother’s estate; a claim Perpetual denied.

The Court of Appeal was asked to rule on the legal standard applied in exercise of trustees’ discretionary powers.  Principles previously buried in case law are now out in the open, spelt out in the Trusts Act.

Judges do not seek to ‘second guess’ what a trustee should have done, rather that trustees should have properly canvassed possible options.

On her death in 2017, Naomai Joan Cooke named her daughter Anne together with son Mr Cooke in her will as executors of her estate.

Her Orewa property was to be sold; the proceeds split between her two children.  Mr Cooke was given a life interest in her six hectare Wellsford property, with executors given a discretion to sell this property with the proceeds to be used either to buy a replacement property for Mr Cooke or to invest the proceeds paying him an annual income.  

Estate administration got off to a bad start with Mr Cooke shifting into the Orewa property after their mother’s death, telling his sister he was not going to budge.

This resulted in a court order removing them both as executors, with Perpetual Trust appointed.

Attempts to sell Orewa were fraught from the start.

A court order was needed to evict Mr Cooke.

At his sister’s suggestion, Perpetual had the property tested for methamphetamine exposure before sale.  Traces were found, leading to decontamination costs.

Mr Cooke was of the view Orewa was worth at least $1.8 million and suggested he might buy.

Perpetual held a $1.025 million valuation from a registered valuer, a figure slightly below rating valuation.  It was trying to sell in the middle of covid-19 pandemic disruptions.     

It received an offer just above this valuation in a direct approach from an intending buyer.  Perpetual accepted this offer at a time when Mr Cooke was still under the impression he could buy, but had yet to make any offer.

He challenged this off-market sale as being at an undervalue.

The Court of Appeal ruled Perpetual acted properly within its discretion as to the timing and manner of the sale.

The property was rundown with repairs needed.  The risk of Perpetual making a counter-offer was that the intending purchaser would walk away.  A private sale saved real estate commission.

The court ordered that costs of methamphetamine decontamination be deducted from Mr Cooke’s share of net sale proceeds.

It was proper for Perpetual to carry out testing, the court said.  Perpetual acted on advice from Mr Cooke’s sister.  She was aware of her brother’s criminal history for drug offending.  Mr Cooke was in sole occupation for two years prior to the tests.

After Mr Cooke moved to his late mother’s Wellsford property, Perpetual sought court ‘blessing’ to its actions, having evicted him from that property.

Perpetual claimed he was in breach of terms of the life interest allowing him occupation, in particular failing to pay rates and to keep the property in the same condition as at his mother’s death.  Perpetual objected to Mr Cooke shifting 20-foot shipping containers on site, adding security fencing and installing cameras.

He threatened to set his dog on contractors employed by Perpetual attempting to carry out a site inspection.

The Court of Appeal confirmed a High Court ruling that Mr Cooke be allowed to reoccupy Wellsford.  Perpetual had plans to sell.

There was a only short delay in paying rates.  It was wrong to block inspections.

But Perpetual incorrectly exercised its discretionary power of sale in seeking to evict Mr Cooke from the Wellsford property the Court of Appeal ruled.

His mother was aware of her son’s criminal history.  Allowing her son a life interest only was intended to give him somewhere to live, while preserving capital for his daughters later use.

In exercising its discretionary powers as executor, Perpetual did not consider reasonable alternatives beyond eviction that might achieve his mother’s aims, the court said.

Perpetual cannot charge to the estate costs incurred evicting Mr Cooke from the Wellsford property, the court ruled.

Perpetual Trust Ltd v. Cooke – Court of Appeal (31.07.26)

26.213

Receiver: Ryan v. Lobb

  

In a rare move, the High Court blocked possible further attempts to sue a court-appointed receiver bringing finality to repeated litigation disputing division of family trust assets.  Stuart Lobb was described as taking repeated steps to frustrate receiver Digby Noyce in a dispute over sale of Mr Lobb’s former family home known as ‘Lothbury,’ in Auckland suburb of Remuera.

Over a six year period since Mr Noyce was appointed receiver, Mr Lobb and his allies have explored every possible legal stratagem to prevent sale of Lothbury, resulting at one point in Mr Lobb being held in contempt of court.

Legal moves and counter-moves have seen Mr Noyce in court multiple times defending attempts to carry out High Court instructions for potential sale of Lothbury.  After a sale was achieved, Mr Lobb threatened to sue Mr Noyce, alleging this sale was made ‘off-market and under market value.’

Evidence was given that Mr Lobb is currently suing Lothbury’s purchaser, seeking to recover chattels he alleges were wrongly sold as part of the house sale.

Mr Lobb’s primary complaint has been that he should retain control of Lothbury; he owned the asset before it was transferred to a family trust, he should get it back when the trust is divvied up, he claims.  

Mr Noyce was appointed by the High Court in 2020 with authority to sell Lothbury and to divide the proceeds between trust beneficiaries: Mr Lobb and former spouse Verena Ryan.  The two separated ten years ago.

With this task complete, Mr Noyce asked to be discharged from his role as court-appointed receiver – a normal procedure.

Unusually, Mr Noyce further asked he be protected from any further litigation from Mr Lobb and his allies.

Mr Lobb continues to allege that Mr Noyce failed to properly do as instructed, has ‘extorted’ money from him, and has breached fiduciary duties as receiver ‘over fifty times.’

He separately complains that Mr Noyce has not properly accounted for money received.

Mr Noyce has made full disclosure of all financial details in his regular reports to court, Justice Andrews said.

In ruling that Mr Noyce and his employees cannot be further sued for steps taken as part of the court-ordered receivership, Justice Andrew followed similar practice in England and Australia where judges have assumed an inherent power to grant immunity in appropriate circumstances.

There is a real risk Mr Lobb will otherwise litigate and re-litigate his perceived grievances, Justice Andrew said.

Ryan v. Lobb – High Court (30.07.26)

26.212

Maori Land: Kaka v. Kaka

  

Maori Land Court intervened after extended whanau challenged Karen Kaka’s descendants right to occupy Maori land near Oakura in Northland, questioning their late mother’s paternity and physically forcing them off-site.

Her four children are entitled to inherit, Judge Williams ruled.

Evidence was given of intimidation and violence directed at Karen Kaka’s husband and family after her 2023 death.

There had been opposition four years previously to an occupation order in her favour covering two hectares of land held by trustees of the Henare Aperahama Wharemate Whanau Trust; a trust set up in 2013 to consolidate shareholding in Maori land then held by 34 different owners.

This occupation right had been approved by the then trustees of the Henare Trust and confirmed by the Maori Land Court.

The occupation right takes up about ten per cent of the communally owned Trust land.

Karen Kaka and her family subsequently paid for and shifted four relocatable cabins onto the site, plus a container used for storage.

After her death, other hapu members shifted in, breaking locks and allegedly removing equipment and items of furniture.

The relocatable cabins were offered for sale, without permission from her family.

When challenged, they pointed to terms of the Henare Trust deed which stated those entitled to benefit from trust land were blood descendants only; those adopted as whangai were expressly excluded.

They claimed Karen was not a Henare blood descendant, demanding a DNA test be taken.

Judge Williams pointed out that Maori Land Court records stretching back decades identified her as a blood relative.  To now claim she was a whangai adoption is ‘highly unpersuasive,’ he said.

Her four children were now entitled by descent to inherit their mother’s occupation right, he ruled.

Her partner Philip was granted limited rights of occupation that do not pass on his death.  His right of occupation is limited to a life interest only, or until he remarries, since he does not whakapapa to the land.

Judge Williams warned of further court intervention should hapu members continue to challenge Kaka family members rights of occupation.

A minor adjustment was made to the Kaka families’ occupation-right boundary, allowing wider hapu access to another building on site.

Kaka v. Kaka – Maori Land Court (29.07.26)

26.211

Joint Venture: Zhou v. Liu

  

New Zealand resident Nicholas Liu lied, cheated and used forged documents to fool China-based joint venture partner Yuchen Zhou into thinking he was part owner of property developments across Auckland.  High Court orders for compensation exceeding eight million dollars are now hampered by the fact Mr Liu remains in control of companies owning these properties and his present whereabouts are unknown.

Mr Liu did not appear in court to defend claims against him.  His spouse says he is in China.

The High Court was told of two joint venture property deals now in dispute: a 2017 agreement intending purchase and redevelopment across three neighbouring sites on Arran Street in Avondale; and a 2019 agreement for purchase of a commercial building on Kitchener Road in Milford.

A common thread across both projects was Mr Liu’s behaviour in lying about the purchase prices (having the effect of increasing the cash contribution put in by Mr Zhou), failing to have ownership recorded in agreed proportions (giving Mr Liu complete control), and borrowing against the joint venture properties (both to provide funds for his share of the purchase prices and to generate cash used for his own purposes).

In addition, Mr Zhou was encouraged to provide loan capital for supposed development of townhouses at the Arran Street site on the pretext that debt capital was expensive to raise in New Zealand.  No development ever started.  What Mr Liu has done with this six million dollar loan is unknown.  

In the High Court, Mr Zhou said he had relied on Mr Liu to negotiate purchase of the properties plus set-up and manage legal structures to own and operate the joint ventures.

He rarely visited New Zealand.  Travel was further hampered by covid-19 pandemic restrictions.

Mr Zhou said he only became aware of lack of progress at the Arran Street site after viewing Google Earth mapping.  Mr Liu had previously sent him photographs showing earthmoving equipment on site, supposedly ready to start.

By mid-2024, Mr Liu had stopped responding to requests for information.  Mr Zhou sued to gain control of the projects and to recover money due.

Mr Liu was held to be in breach of their joint venture agreements and in breach of fiduciary duties owed his joint venture partner. 

Justice MacGillivray ordered sale of the Arran Street properties to repay Mr Zhou’s six million dollar loan plus interest and also repay the extra $2.1 million extracted from Mr Zhou through use of false purchase prices entered on forged agreements for sale and purchase.

Mr Liu controls companies owning the Arran Street sites.

Justice MacGillivray signalled he is sympathetic to putting these companies into receivership in an initial step to force a sale.  Overseas Investment Office clearance is first required since sale proceeds would be going to Mr Zhou as an overseas resident.

The Kitchener Road property is owned by a chain of companies ultimately under control of Mr Lui.

As with the Arran Street project, Mr Liu bumped up the supposed purchase price for Kitchener Road when asking Mr Zhou to remit his ‘share’ of the purchase price.  He then mortgaged their joint venture asset for his own personal benefit.

Justice MacGillivray ruled all shares in the company owning Kitchener Street are now held in trust for Mr Zhou.

Mr Liu and his spouse were invited to put before the court evidence of any financial contributions they may have put towards the properties.

Zhou v. Liu – High Court (29.07.26)

26.210

Loan: Lal v. Jajal

  

It was a commercial arrangement between friends, not a consumer credit contract requiring precise statutory loan disclosures the High Court ruled on enforcement of Sachindra Lal’s guarantee of a loan to builder Giri Tata, enabling completion of work on the Lals’ family home in Auckland.

The three-way financing arrangement was intended as a bridging loan, protecting Mr Lal’s credit rating at a time when he was seeking extra finance to complete construction of his home at the beachside suburb of Maraetai.   

The High Court was told the Lals are currently living at the property.  It does not currently have a building code compliance certificate.  There is an ongoing dispute with Mr Tata’s building company about construction issues.

Evidence was given of Mr Lal needing bridging finance necessary to complete construction in early 2024.  Negotiations with ANZ Bank for further funding had stalled.

A short agreement signed by all three parties acknowledged that Mr Tata was borrowing $100,000 from Anirudda Jajal, described as a friend of Mr Tata, with interest payable at $1087.50 per month.  This agreement anticipated repayment within the month.

In fact, the loan was extended twice and then left unpaid, before Mr Jajal sued Mr Lal on his guarantee nine months after the funds were advanced to Mr Tata.

Mr Lal had signed the tri-partite agreement agreeing ‘the loan is on [him] eventually.’

It was intended repayment would come out of what was then anticipated further ANZ bank financing.

Refusing to pay on his guarantee, Mr Lal argued the Jajal/Tata loan he had guaranteed was a consumer contract, unenforceable because of failures to make mandatory disclosures required by the Credit Contracts and Consumer Finance Act.    

Confirming an earlier District Court ruling, Justice Andrew said this was not a consumer credit contract.

Mr Jajal was not in the business of lending money.

Mr Tata was not acting as a ‘broker’ by facilitating arrangements for Mr Lal to finance further construction.  He was not paid any fee.

Mr Tata did get an indirect benefit in that work for his building company could progress.

Even if it were a loan which required Credit Contracts and Consumer Finance Act disclosures, it is difficult to envisage what further disclosures might be required, Justice Andrews said.

Mr Lal guaranteed a simple, uncomplicated, loan arrangement.

He was provided with all the relevant information.

The money lent to Mr Tata was spent on construction of Mr Lal’s house.

There was no evidence that Mr Lal misunderstood what he was guaranteeing.

Lal v. Jajal – High Court (27.07.26)

26.207

Family Trust: re Neal Grenville Johnson Trust

  

Before his death in 2010, Neal Johnson learnt the family trust he had established three decades earlier left capital tied up until 2058 with no ability to access capital or terminate the trust early.  His two children, now in their eighties, needed High Court approval to release trust capital.

Children Richard and Diana saw no advantage in allowing the trust to trundle along until such time as their own children were in their eighties before capital could be released.  They wanted their own children to benefit immediately.

The High Court was told trustee expenses were eroding income available for distribution, with expenses for the 2025 year amounting to nearly fifty per cent of trust income.

Distributions from trust income had been made to Neal’s widow, up to her death in early 2026.

Trust capital currently totals just over three million dollars.

Public Trust is named as trustee.

It supported moves to terminate the Neal Grenville Johnson Trust.

Trusts Act High Court approval was given to family proposals for trust capital to be split in two: one half share to be divided equally between Richard’s two children; the other half placed in a trust for the benefit of Diana’s children.

At issue were rights of contingent beneficiaries named in Neal Johnson’s original family trust.

Listed as potential beneficiaries are children and grandchildren of a cousin; named to receive trust assets in 2058 should no children, grandchildren or great-grandchildren of Neal survive to that date.

Given there are eleven Neal great-grandchildren currently alive who would be aged between 37 and 51 in 2085, the chance of any alternative contingent beneficiary inheriting is so remote as to be almost theoretical, Judge MacGillivray said.  Their potential interest in the Trust could be ignored when resettling Neal Johnson’s family trust assets on two new trusts.

re Neal Grenville Johnson Trust – High Court (27.07.26)

26.209

Costs: McGuire v. Inland Revenue

  

In what looks like regular high-stakes games of chicken, the Court of Appeal heard Jeremy James McGuire has more than once faced bankruptcy applications from Inland Revenue forcing payment of tax due.  Most recently, he was ordered to pay, in full, Inland Revenue’s $50,200 legal costs defending what was described as a ‘hopeless’ legal challenge to a current tax ruling; a challenge most likely intended to delay bankruptcy, the court said. 

The most recent challenge saw Mr McGuire seeking judicial review of a District Court ruling enforcing Inland Revenue’s assessment of income tax and penalties due for multiple tax years: some $39,700.

Normal procedure would involve an appeal to the High Court of a District Court decision, not judicial review.

An appeal considers whether legal principles were properly applied; judicial review looks at the process by which a decision was reached, not the merits of a decision.

The Court of Appeal was told Mr McGuire’s application for judicial review was filed after Inland Revenue had served a bankruptcy notice; first step in potentially having him bankrupted for failing to pay the $39,700 taxes as ordered by the District Court.

This judicial review application was later dismissed.

Inland Revenue asked for indemnity costs; reimbursement of its litigation costs in full, ordered by a trial judge where there has been ‘flagrant misconduct’ by a litigant.

Ordering payment, the trial judge stated Mr McGuire’s judicial review application was ‘hopeless’ and ‘so clearly untenable that it could not succeed.’

On appeal, the Court of Appeal confirmed indemnity costs of $50,200 must be paid, despite Mr McGuire’s claim he had made genuine mistakes about the outcome of prior negotiations with Inland Revenue.

It came out in evidence that on a previous occasion Mr McGuire belatedly paid some $76,600 in tax and penalties, to avoid being bankrupted then by Inland Revenue.

McGuire v. Inland Revenue – Court of Appeal (27.07.26)

26.208

Unit Title: Dominion Seven Ltd v. Body Corporate 82981

  

Unit title apartment owners can be separately billed for any ‘substantial benefit’ to their apartment following body corporate authorised repairs, regardless of whether they voted in favour or not.

Owners of adjoining apartments on top floor of the Dominion Building in central Wellington unsuccessfully challenged reimbursement of some $140,000 demanded after repairs to their cantilevered balconies were carried out at the same time as roofing remediation.

At issue were changes to the Unit Titles Act in 2010 intended to overcome the then problem of owners letting their individual apartments run down, continually deferring much-needed repairs and maintenance, leaving other apartments at risk.

New rules allow bodies corporate to initiate repairs.

Two top floor owners in the Dominion Building argued they could not be forced to pay for repairs specific to their apartments, part of a seven million dollar roof remediation, even if these repairs happened to benefit them exclusively.

Their balconies were temporarily removed, enabling installation of an external goods lift elevator for the roof remediation.

The Dominion Building is nearly one hundred years old.

A new top floor was added in the 1980s with units 29 and 30 on that floor unusual in having cantilevered balconies hanging in mid-air over land owned by Wellington Council.

Arguably, these balconies form part of body corporate common property, but practically are only available for the exclusive use of each apartment owner.

During the re-roof, balconies being re-attached to units 29 and 30 were repaired, made safe with installation of new decking.  

In the High Court, Justice La Hood confirmed a prior District Court ruling that it is irrelevant whether a body corporate or an apartment owner initiates the repair; if work results in a separate substantial benefit for specific apartment owners, they pay.

Dominion Seven Ltd v. Body Corporate 82981 – High Court (24.07.26)

26.206

Lease: 3i Southern Cross v. Christchurch Airport

  

With Christchurch Airport as landlord attempting to evict 3i Southern Cross Ltd from a leased commercial site, the High Court dismissed 3i’s argument that the Airport’s demand for a bank guarantee of rentals necessarily implied that the premises were fit for use and that it was the Airport’s fault that it could not get the necessary guarantee.  

3i argues difficulty in getting a guarantee is proof Christchurch Airport is in the wrong and has to make good alleged building defects.

3i Southern Cross operates as a stevedoring and logistics company.

It took over a large commercial site in Dakota Park at Christchurch Airport after the previous tenant went bust.

3i went into possession before all the paperwork was finalised, failing to produce a required $1.15 million bank guarantee to cover future rentals should it default.

Christchurch Airport’s High Court Property Law Act application to have 3i’s lease cancelled saw 3i argue the building is defective.  Christchurch Airport is at fault, it alleges.  Defects hampered its ability to get a bank guarantee, it argued.

Christchurch Airport says the building is up to Code.

Any bank is free to refuse guaranteed support for a tenant’s rental payments for any reason whatsoever, Associate Judge Lester said.

For a bank, this is a commercial decision, separate from the state of the building being tenanted.

A rental guarantor has no legal interest in the building being tenanted, Judge Lester said.  It cannot take over the lease, replacing the tenant, after payment of rental arrears.

If forced to pay rent arrears, a guarantor merely enforces whatever rights it has against the tenant, he said.

3i Southern Cross Ltd v.  Christchurch International Airport Ltd – High Court (23.07.26)

26.205

Sale: van Asch Ventures v. Kingston Station

  

Claimed to be without precedent, a company owned by Queenstown-based entrepreneur Henry van Asch had the High Court block proposed cancellation of a high-country farm purchase following failure to satisfy contract conditions.  This gives Mr van Asch valuable commercial breathing space, voiding the usual legal process of cancellation followed by later legal argument whether cancellation might, or might not, have been legally valid. 

Van Asch Ventures Ltd signed in May 2025 to buy Tim Tayler’s Kingston Station Ltd, at Lake Wakatipu, one of South Island’s biggest high-country sheep and beef stations.

Only a small portion of Kingston Station is on freehold title; the rest held on long-term Crown pastoral lease.  Consent to any sale was required from the Commissioner of Crown Lands.

The High Court was told consent has been delayed, apparently over plans that Mr Tayler might continue to reside on Kingston Station after the sale.

The sale to van Asch Ventures is conditional on Crown Lands consent by early May 2026.  This date came and went with no consent advised, giving grounds for Kingston Station to cancel.

Without giving notice to Kingston Station, Mr van Asch obtained a High Court interim order blocking any attempt to cancel.

When Kingston Station later protested, van Asch Ventures paid $1.6 million dollars into its lawyer’s trust account, as security for any potential damages ruling in favour of Kingston Station.

At a subsequent court hearing, Justice Preston preserved the status quo; ruling both sides legal position is frozen as at the earlier May date by which Crown Lands consent was required.

It is for a later full court hearing to decide whether the sale goes ahead, or is cancelled.

Van Asch Ventures Ltd v. Kingston Station Ltd – High Court (20.07.26)

26.204

Director's Remuneration: Monnery Family Trust v. Convendium Ltd

  

A family trust can never be a company director nor an employee, with multiple court rulings following Convendium Ltd’s insolvent liquidation ordering Paul Monnery’s family trust as shareholder repay $560,200 taken from the company, despite these funds being later on-paid to Mr Monnery as a director’s salary.

Charging orders are in place over Monnery family assets and both Paul Monnery and spouse Julie have been threatened with bankruptcy proceedings according to the liquidators’ most recent report, with Convendium liquidators seeking to recover the disputed $560,200.

Operating out of premises at Otahuhu in South Auckland, Convendium Ltd was set up in 2005 to provide cashless point of sale systems for vending machines.

Ten years later, the business had run out of steam, and cash.  Mr Monnery resigned as managing director.  Debts allegedly owed the company become a hot legal issue following a 2019 High Court order putting Convendium into liquidation.

There was no dispute that Monnery Family Trust as shareholder owed Convendium over half a million dollars.

As is common with closely-held companies, Convendium operated a shareholder current account recording expenses incurred by the Trust on behalf of the company and advances from the company to the Trust.

Mr Monnery argued this shareholder current account also recorded as loans from the company amounts which should have been more properly described as payment to him of a director’s salary.

Mr Monnery argued this was payment for services he provided to Convendium, extinguishing the supposed debt their family trust owed Convendium.

A 2020 Court of Appeal ruling saw the three Monnery Family Trust trustees held personally liable to repay the Trust’s entire $560,200 debt owed Convendium.

Companies Office records show the Trust’s one independent trustee then settled his liability, paying $130,000 to liquidators.  The two other trustees, Paul and Julie Monnery, have resisted payment.

In 2026, Mr Monnery was back in the Court of Appeal with copies of emails dated from 2009 and 2015 which he said provide new evidence of his entitlement to a salary from Convendium.    

Even if this was new evidence, it does not alter the trustees’ liability to repay the Trust’s overdrawn shareholder’s account, said the Court of Appeal.

The question of Mr Monnery’s director’s remuneration, apparently funded by their family trust rather than by Convendium, is a separate issue between Mr Monnery and his family trust, the court said.

P & J Monnery Family Trust v. Convendium Ltd – Court of Appeal (20.07.26)

26.203

Insurance: McGuire v. AIG Insurance

  

Seeking to recover lost income from legal aid work, Palmerston North lawyer Jeremy McGuire was ten years too late suing AIG Insurance over its handling of a professional indemnity insurance claim, the High Court ruled.

Limitation Act rules meant right to sue expired back in 2016.

Mr McGuire has fought long and hard to be reinstated to a panel entitled to legal aid funding.

Back in 2009, misconduct charges were laid against him by the Law Society.  Two years later, these misconduct charges were withdrawn, with Mr McGuire pleading guilty to a substituted charge of unsatisfactory conduct.

In the interim, his legal aid contract was cancelled.

The High Court was told Mr McGuire held professional liability insurance in 2009 with what is now AIG Insurance providing cover for costs incurred defending any disciplinary hearing.

He and AIG came to hold differing views as to conduct of his defence.

As is common in professional liability insurance contracts, AIG reserved the right to no longer fund the claim in cases of a dispute with its client.

They settled their differences with a 2011 agreement in which Mr McGuire was paid $5000 and his rights to make any further claim on his insurance policy cancelled.

Over a decade later, Mr McGuire sued, alleging AIG breached obligations to act in good faith in failing to support his defence against Law Society disciplinary charges.

He was seeking to recover lost income he might otherwise have earned as a legal aid lawyer.

Justice Jagose left open the question of whether insurers in general owed any such obligation to act in good faith, ruling that Limitation Act rules required Mr McGuire to bring his claim within six years of AIG refusing to further fund his defence.

McGuire v. AIG Insurance – High Court (8.07.26)

26.201

Estate: Manukau v. Manukau

  

Mohi Manukau died without leaving a will.  It was eleven years after his 2008 death before daughter Isabel obtained Administration Act letters of administration to handle her late father’s estate and then needed a court order to force brother Riki out of their late father’s Helensville home.

Riki argued that his sister lacked family consent to take control and that an entity called Manukau Maori Trust Inc instead had rights to the property.  

The High Court was told Riki moved in some time after their father’s death.

Justice Jagose said the clear legal effect of Isabel being granted letters of administration is that she has the right to assume possession of the Stewart Street property as an estate asset, and further has the right to sell.

Riki had no legal right to remain in occupation.

He was given a week to depart.

The court was told Isabel has already sold Stewart Street.  It is the estate’s only asset.

Manukau v. Manukau – High Court (8.07.26)

26.202

Estate: Casey v. Blair-Bellamy

  

Ian Blair-Bellamy could not be held to promised payouts for his three step-children after their mother’s death because a supposed deed of family of family arrangement was not enforceable, lacking necessary consent from their half-brother, still an infant at time the deed was signed.

Since their mother died without leaving a will, her children instead receive shares calculated according to a statutory formula set out in the Administration Act; likely to be a far lesser sum on figures quoted in the High Court than that promised by their step-father in the proposed deed of family arrangement.

Jennifer Blair-Bellamy died in 2019.

She is survived by four children; three from an earlier relationship and infant Charlie, son of her now-widowed spouse Ian.

The couple farmed on a lifestyle block at Matarau Road, near Whangarei.

It was nearly three years after his wife’s death before Ian applied for letters of administration, giving him legal authority to deal with his late wife’s assets.

In the interim, agreement had been reached within the family for a division of her assets roughly equating to Administration Act rules: personal chattels and one-third of the estate going to Ian as surviving spouse; the remaining two-thirds to be divided equally between her four surviving children.

Asset values were estimated, with provision for revaluations at a later date after Ian obtained letters of administration.

Ian agreed to pay the surviving children by instalments with interest, plus penalty interest for late payment.

The High Court was told Matarau Road had to be sold to fund these payments, selling in 2025 at a figure far lower than previously estimated.  Net proceeds were zero, after sale costs and repayment of a bank mortgage.

Ian’s step-children sued to enforce the earlier agreed payment amounts and payment schedule.

In the High Court, Associate Judge Brittain ruled this earlier agreement was not enforceable.   

The deed of family arrangement only became operative after all parties signed.

Charlie as an infant did not sign.  As a minor, he did not have the legal ability to enter into a contract.

His father signed in his name, supposedly on his behalf.  This signature was of no legal effect. Court approval is needed on any infant’s behalf for any contract altering statutory rights under the Administration Act.

Judge Brittain dismissed the step-children’s attempt to enforce the earlier agreement, in which each claimed to be owed $333,200.

Casey v. Blair-Bellamy – High Court (6.07.26)

26.200

Worksafe: Whakaari Management v. Worksafe

  

Criticised for pressing on with its ultimately unsuccessful prosecution of Whakaari/White Island landowners following a fatal 2019 eruption, Worksafe’s actions resulted in payment of $120,000 towards landowners’ legal costs on the basis prosecution should never have proceeded.  Contemporary Worksafe guidelines clearly stated landowners were not required to manage risks of recreational activity carried out on their land.  Whakaari landowners told Worksafe long before prosecution started of the strong legal grounds on which they were ultimately held not liable.

Tourists as part of a walking tour were on the island when the volcano erupted; twenty-two died, twenty five severely injured.  The consequences attracted international publicity with most of the dead and injured from overseas.

Worksafe initiated prosecutions against thirteen different individuals and organisations for alleged breaches of the Health and Safety at Work Act.

This included Whakaari Management Ltd, controlled by third generation members of the Buttle family who have owned the island since 1935.

They were highly critical of what was viewed as political posturing by Worksafe at trial, claiming Whakaari Management put profits ahead of safety.

Whakaari Management’s District Court health and safety conviction was overturned on appeal.

On appeal in the High Court, Justice Moore ruled Worksafe’s prosecution was based on an erroneous understanding of the law; an error pointed out by Wakaari’s lawyers well before trial.

As a general rule, successful defendants in a criminal trial are not compensated for their legal costs.  Taxpayers do not indemnify defendants for a successful defence.

Costs in Criminal Cases Act does allow an award of costs at a judge’s discretion.

Deciding a contribution to costs was appropriate, Justice Wilkinson-Smith ruled Worksafe lacked sufficient evidence to commence a prosecution against Whakaari Management and could on several occasions have re-considered its stance as the prosecution proceeded through its various stages.

Whakaari Management was awarded $120,000 compensation towards its actual defence and appeal costs totalling some $635,000.

Other organisations awarded costs in defending prosecutions arising from the eruption are: National Emergency Management Agency awarded $40,000 (having incurred costs of $800,000 up to the point charges were dismissed pre-trial); and Tauranga Tourism Services Ltd also awarded $40,000 (incurring costs of $153,400 with a charge dismissed part-way through the District Court hearing.)

Worksafe itself is not liable to pay these costs orders.

Payment comes from a fund held by Ministry of Justice.

Whakaari Management Ltd v. Worksafe New Zealand – High Court (3.07.26)

26.199