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

Bankruptcy: Ward v. Andrews

  

Part of the ‘sovereign citizen’ movement, Russell Ward failed in his claim that bankruptcy rules do not apply to him.

Mr Ward was in court alleging aircraft frames now under control of Tom Andrews at Classics Car Museum had been stolen from his Waikato farm at Whatawhata, near Hamilton.

Mr Ward was bankrupted in 2021 and remains bankrupt until 2027 because of his delay in providing a statement of financial affairs to Insolvency Service.

Whilst bankrupt, he filed papers on the Personal Property Securities Register claiming rights to the aircraft frames.

Insolvency Service intervened.

As a sovereign citizen, Mr Ward stated he was ‘immune from prosecution’ and that he had never signed any contract giving a court jurisdiction over him.  The Russell Ward who is bankrupt is a different persona from himself as a sovereign citizen, he claimed.

Justice Harvey struck out his claim to the aircraft frames.

On bankruptcy, rights over Mr Ward’s assets came under sole control of Insolvency Service.

Ward v. Andrews – High Court (3.07.26)

26.198

Trust 'Blessing:' Aaron Adams Trustee Ltd v. Jones

  

Trustees of a substantial private trust obtained judicial protection from potential liability while at the same time asking for and getting anonymity; to avoid being besieged by requests for money, they claimed. Immunity, without identification, does not count as a textbook case of open justice.

Trustees obtained High Court ‘blessing’ for distribution of trust assets described only as ‘eye-watering amounts of money’ with distribution terms finalised three years after the prime beneficiary’s death and the court file sealed.

Their application for Trusts Act blessing reduces personal liability for potential later claims; described in this case by Justice Becroft as ‘legal complications that are unnecessary [to disclose publicly].’

The court judgment made public did disclose the manner in which the private trust was established and dissolved.

Names were anonymised.

Zenith Trust was established in 2007 to hold substantial compensation paid Aaron after suffering serious injuries in an overseas motor vehicle accident, leaving him disabled and with head injuries affecting short term memory and decision making.

Aaron returned to New Zealand to live in a trust-owned property in Auckland.

Trust assets were increased by a bequest following his father’s death.

He died in 2023, earlier than expected, with complications following a stroke.

Substantial capital, intended to support him for many more years, remained intact.

Prior to his death, Aaron lived at his Auckland home with long-term partner Claire.

Implementing what the trustees said were Aaron’s wishes, a new trust was established for distribution of assets to Claire, members of a family described as being close to Aaron during his life, and charities.

While not legally required, trustees sought High Court approval to this distribution.

Given the amount of money involved, court approval provides a cross-check and reassurance that proper and careful processes have been undertaken, without any bias, undue influence, self interest, or conflict of interest, Justice Becroft said.

Names of the trustees were anonymised, beyond identification as being two lawyers: one male, one female.  Aaron Adams Trustee Ltd named on the court record as supposed trustee does not exist on the New Zealand companies register.

Aaron Adams Trustee Ltd v. Jones – High Court (1.07.26)

26.197

Mortgagee Sale: Rahal v. ASB

  

ASB Bank mortgagee sale standard terms have the effect of potentially reducing the sale price and in one case allowed a debtor to refinance and recover their property even after a forced sale, but before settlement.  

This High Court ruling centred on time-honoured rules governing a debtor’s ‘equity of redemption:’ the right to recover property before completion of a mortgagee sale.

Jivan Jyoti Rahal sued to block ASB’s mortgagee sale of a 2.4 hectare site in Auckland suburb of Penrose owned by her family trust, currently leased for use as a restaurant.  She is guarantor of her family trust’s bank loan, with $1.3 million currently due.

ASB’s mortgagee sale procedures were triggered following failure to pay on a June 2024 demand for the amount then due.

In November 2025, ASB accepted a tender offer of $3.2 million from a company called Tara Homes AKL Ltd, an entity linked to the business currently running a restaurant on site.

Terms of sale to Tara Homes permit ASB to back out of the contract ‘for any reason whatsoever,’ with Tara Homes entitled to return of its deposit.

In the High Court, Justice Johnstone pointed out this clause has the effect of depressing tender offer prices.

A potential buyer will factor in the potential inconvenience and opportunity cost of devoting resources to a bid which, even if successful, may later be binned.

The Bank’s discretion to withdraw from a mortgagee sale at any time for any reason has a direct effect on the debtor’s equity of redemption, Justice Johnston ruled.

Courts have always allowed debtors a final chance to make good their secured debt, recovering their property.  The general rule is that once a sale is concluded, the right to redeem has vanished.

In its forced sale of the Penrose property, ASB contract wording meant there was no concluded sale until settlement, with payment then of the full sale price and transfer of ownership. 

Justice Johnstone ordered ASB’s settlement of the Penrose sale to Tara Homes be delayed three weeks, giving Ms Rahal one final chance to clear the debt.

She produced a letter in court with details of another financier offering funding.

Rahal v. ASB Bank Ltd – High Court (30.06.26)

26.196

Fraud: R. v. Harris & McQueen

  

Carefully staged around the Christmas holiday break, Brendon Karl Dean Harris and Tipa McQueen exploited the fact that junior less experienced staff were likely to be on duty to extract personal details from Inland Revenue, Internal Affairs and Spark about a high-net worth individual sufficient to then gain access to his bank account, stealing $397,000 before suspicious bank staff blocked further transactions.  Both were convicted of dishonestly accessing a computer system and jailed.

The District Court was told Harris set the fraud in motion with a late afternoon call to Inland Revenue on 23 December 2025 providing enough personal information about their victim to be told his IRD number.

One hour later, McQueen made a fictitous police report in their victim’s name claiming his car had been broken into with cellphones, a laptop, bank cards and driver’s licence stolen.  This false report generated a numbered online police report.

Next day on Christmas Eve morning, Harris phoned Internal Affairs, providing enough personal information to get the victim’s passport number.

Same day, using the police report number, Harris succeeded only after several failed efforts in having Spark block their victim’s cellphone numbers, with their own number then recorded as a temporary contact number.

After gaining access to the victim’s bank account, they changed the password to block further access by the victim, changed the contact phone number on account records, and proceeded to transfer $397,000 across to accounts controlled by themselves and their associates.

Bank concerns about suspicious activity on the account were allayed when a staff phone call went straight to the fraudsters’ phone, where a plausible explanation was provided.

Further funds were then extracted from the compromised account before the bank acted to freeze the account.

The court was told the bank has compensated its customer for his losses.

Sentencing Harris to three years and two months’ imprisonment, Judge Kellar described him as a recidivist offender.  A psychologist's report says Harris is anti-social and narcissistic.

McQueen was sentenced to two years and three months.

He has 35 prior convictions, primarily for violence and drug offences; few for dishonesty.

R. v. Harris & McQueen – District Court (30.06.26)

26.195

Managed Fund: Funeral Directors Assoc v. Funeral Trust Services

  

Pre-paid funeral managed funds, now holding assets totalling sixty million dollars on behalf of some 7000 customers with many having differing contractual rights on death, have been consolidated by High Court order into one fund, with leeway given for individual customers to get their money back now if they do not like the new scheme. 

This consolidation follows ongoing corporisation of the funeral industry as family-owned businesses sell up.

For funeral directors, pre-paid funerals locked in future business, discouraging estate executors from going elsewhere on death of a customer.  Pre-pay plans sold to customers as protection against future cost increases could see estate beneficiaries later disappointed, as further costs were added in for extras like live-streaming of funeral services, a facility which never existed when signing up.

Having to hold pre-payments in trust led to substantial administration costs for providers.

Pre-paid funerals were first offered en masse in the mid-1980s, backed by insurance cover taken out through nominated life assurers; cover no longer offered by life assurers since 2009.

The High Court was told there are still over 600 customers with live polices operating under this old scheme.

Since 2010, a Funeral Trust created by the Funeral Directors Association of New Zealand has managed funds held for pre-paid funerals, paying out to member funeral directors when a claim is made.  Many different funeral plan versions are in existence, adding to administration costs.

To reduce costs, and to potentially improve returns for pre-paid customers, Funeral Directors Association got Trusts Act approval to transfer all customers to a new trust: Funeral Trust Services Ltd, which now has administrative responsibility for investing customers’ funds and payment of claims.

Terms of the High Court ruling see any surplus generated by Funeral Trust Services transferred to a charitable trust: The Charitable Funeral Trust.  It was suggested to the High Court that discretionary grants from this charitable trust could be used to top-up funeral costs where there was a shortfall, to assist customer families in financial distress, and to improve public education about funeral traditions.   

High Court approval was given for post-2010 pre-paid customers to be transferred across under terms and conditions of what was described as the ‘Now for Them’ plan.

Rights of pre-2010 old scheme pre-paid customers remain unchanged.

All pre-paid customers are given a grace period to back out.

Almost two per cent of pre-paid customers could not be traced; either moving without leaving a forwarding address, or deceased with no claim made.

Funeral Directors Association of New Zealand v. Funeral Trust Services Ltd – High Court (30.06.26)

26.194

Fraud: Gillies v. R.

  

Colin Hugh Gillies two years six months imprisonment for defrauding his employer of $125,800 was confirmed by the Court of Appeal following his failure to provide any receipts to support a claim he diverted company money to his own bank account as reimbursement for what he personally had spent on behalf of the company.  

The court was told Gillies worked for a small family-owned concreting company for a three year period ending October 2020.

Whilst employed, he diverted payment from five separate company contracts: in some cases keeping payments made in cash; in others diverting payment into his own bank account by altering invoices issued on the company letterhead.

At trial, the jury did not accept his explanation that payment was taken because money was owed to him by the company.  He claimed to be owed some $180,000.

The trial judge said the fraud was motivated by a sense of entitlement.

A folder of expenses presented to the court was not supported by evidence that these expenses had in fact been paid by him.

The fact Gillies had taken no formal steps to recover from his employer money he claimed was owed counted against him, the trial judge said.

The Court of Appeal dismissed Gillies appeal against sentence.

Gillies v. R – Court of Appeal (29.06.26)

26.193

Family Trust: re Chatsworth Trust

  

Australian tax law forced trustees of an Auckland family trust to get court approval extending life of their trust to avoid imminent sale of a Gold Coast apartment.

Chatsworth Trust was established by businessman Garry Melville-Smith in 1983.  Family members are beneficiaries.

The High Court was told this Trust has a 2028 expiry date.  Its only remaining asset is shares in a company owning the Gold Coast apartment.

Family members use this apartment for holidays.  They want to have it continue as a trust asset beyond 2028.  Effect of the Trust’s fixed expiry date will be to force a transfer of the apartment to a new family trust, triggering an Australian tax liability.

Using Trust Act powers, Justice Tahana approved a new expiry date calculated as 125 years from the Trust’s creation in 1983, enabling the Trust to run on beyond its current expiry date, deferring any potential tax liability arising on sale.

Trusts Act 2019 now permits family trusts to exist for up to 125 years, amending previous rules known to lawyers as rules ‘against perpetuities,’ which prohibit non-charitable trusts from running on forever.    

In addition, Justice Tahana approved changes to the Chatsworth Trust deed removing spouses of family members as potential beneficiaries.

Having spouses listed as beneficiaries increases the risk of Trust assets being subject to relationship property disputes, she said.

re Chatsworth Trust – High Court (24.06.26)

26.191

Pedigree: Jhanzi Afghan Hound v. NZ Kennel Club

  

Wellington dog breeder Jhanzi Afghan Hound operated by Will Hansen and Mary Phillips claimed their business suffered one million dollars damage after NZ Kennel Club reversed pedigree registration of three puppies on learning they were born from breeding a son with mother, in breach of Kennel Club pedigree rules.

Justice Radich ruled Kennel Club acted correctly when it cancelled registration within a week.

Jhanzi Afghan Hound failed to mitigate its supposed losses by instead selling the puppies on the open market, without pedigree registration, he said.

The High Court was told three Kennel Club members laid complaints with Club staff within days of the puppies’ registration being processed.

After confirming dam and sire were mother and son, the Club director/secretary cancelled registration.

Jhanzi Afghan Hound sued, alleging a loss of potential awards and prizes from showing the dogs together with loss of breeding potential.

It claimed NZ Kennel was in breach of contract.  Kennel Club rules required the Club’s executive committee first hold a hearing before de-registration and that Jhanzi Afghan Hound was entitled to give evidence, it said.

There was no breach of contract, Justice Radich ruled.

Registration was simply an administrative error.  The error was corrected.

Jhanzi Afghan Hound Kennels v. NZ Kennel Club Inc – High Court (24.06.26)

26.192

Company: Martin Roofing Ltd v. Martin

  

Ann Martin unilaterally transferred $620,000 into her own bank account from their Hawkes Bay family roofing company Martin Roofing Co Ltd in the middle of a relationship property dispute, setting off a cascade of legal claims with High Court application needed to sort out who pays litigation costs.

Ms Martin took the money in mid-2022, later explaining she was ‘reviewing Martin Roofing’s expense coding and current accounts.’  It was repaid after Martin Roofing, at the behest of her husband, got a High Court freezing order over her assets.

Martin Roofing’s majority shareholder is their family trust.  Ms Martin and Mr Martin are each sixteen per cent shareholders.  Both are directors. 

After repaying the money, Ms Martin filed a statement of defence claiming in essence that she was justified in paying the money across to her own bank account.

Mr Martin in turn sued Ms Martin, supposedly on behalf of their company, alleging her behaviour was disrupting company business.

With none of these claims and counterclaims yet getting to court, attempts to reach agreement resulted in a November 2023 settlement agreement intended to see Martin Roofing’s business sold and proceeds distributed to shareholders.

Evidence was given that there had been no sale by time both were back in court arguing over legal costs to date.

Ms Martin alleges her spouse has used $293,400 of company money to advance legal claims in the company’s name which she says are in fact claims intended to benefit him personally.

Wording in their 2023 settlement agreement stating who bears what share of legal costs across the multiplicity of legal actions currently underway is conditional on their business first being sold.

Associate Judge Gambrill set out a formula for allocating Martin Roofing’s litigation costs to date, depending upon when the costs were incurred; some costs to be borne by Martin Roofing alone, other costs shared 50/50 between Martin Roofing and Mr Martin.

One legal complication was that the Martins’ 2023 agreement is seeking to settle out of court ongoing legal action which involves their company, where Mr Martin as a shareholder is suing with a derivative action in their company’s name.  Such out of court agreements require High Court approval, according to Companies Act legislation.

Martin Roofing Co Ltd v. Martin – High Court (22.06.26)

26.190

Company Director: Loumaile Construction v. Tatafu

  

Auckland labour-only construction company Loumaile Construction Ltd filed financial statements with Inland Revenue reporting a net profit but was wound up insolvent after failing to pay taxes due because directors Viliami Tatafu and Penisimani Tatafu drained cash from their company to pay personal expenses, leaving their company’s Inland Revenue debts unpaid.  They were jointly ordered to repay $481,500 to Loumaile Construction and Viliami separately ordered to repay a further $380,000 covering the period he was sole director.

In the High Court, Justice Gardiner ruled the two were in breach of Companies Act directors’ duties putting their own personal interests ahead of an obligation to ensure company creditors were paid first.

Neither of them defended action taken by the liquidator.  

Loumaile Construction was incorporated in 2015, operating from the home of one of its directors.

Seven years later, Inland Revenue forced their company into liquidation after multiple years of failing to pay income tax, PAYE and GST.

Directors kept no proper accounting records.  Liquidator had to reconstruct the company’s financial position by analysis of its banking records and Xero records.

The court was told up to $2.2 million may have been withdrawn from the company for personal expenses.

There was clear evidence that the two had withdrawn at least $481,500 for personal use up to March 2021.  The judge held both Viliami and Penisimani personally liable to return this amount to their company, having failed to act in good faith and in the best interests of their company.

Penisimani resigned as a director in June 2021.

Viliami as sole director from this date was held personally liable to repay $380,000 used for personal expenses in the remaining eighteen months before their company’s liquidation.

At time of liquidation, Loumaile Construction owed Inland Revenue $417,500 in total.

Loumaile Construction Ltd v. Tatafu – High Court (22.06.26)

26.189

Leaky Home: Jacobsen v. Wilkie

  

Trustees of a family trust could not be sued for building defects following sale of an Auckland apartment.  The trust has no assets; legitimately distributed to a beneficiary following sale of the apartment.  Trustees themselves were not personally liable.

Paula Jacobsen sued trustees of the AT & MA Wilkie Family Trust five years after her $990,000 purchase alleging the Trust as vendor failed to disclose building defects, causing her to overpay by some $835,000 she claims.

This apartment is part of a 92 unit building on New North Road in Kingsland; a mixture of residential, commercial and retail units.

Her claim against the Trust was struck out after a preliminary High Court hearing.

The sale agreement excused any trustees signing the contract on behalf of the Trust from personal liability for any breach of contract.

The contract used wording commonly found in real estate contracts limiting trustee’s exposure ‘to the actual amount recoverable from assets of the trust.’

There was no evidence that trustees had acted in breach of trust, which would otherwise have seen potential personal liability arise, Associate Judge Taylor said.  

Even if the Wilkie Family Trust were held liable, it no longer has any assets.

The High Court was told the Trust had been in existence for many years, set up to insulate Wilkie family assets from potential claims against the late Mr Wilkie’s then architecture practice.

Ten months after the Trust’s sale of its Kingsland apartment to Ms Jacobsen, the Trust was wound up and all assets distributed to Mr Wilkie’s widow as trust beneficiary.

There was no evidence that the Trust was wound up prematurely to defeat any claim against the Trust by Ms Jacobsen, Judge Taylor said.

Any claim Ms Jacobsen may have against the Wilkie Family Trust as vendor cannot succeed since the Trust has no assets Judge Taylor said.

Separately, Ms Jacobsen has ongoing legal claims against her former lawyer and a real estate agent acting for the Trust.

Jacobsen v. Wilkie – High Court (19.06.26)

26.187

Will: re Estate Lynette Mary Williams

  

Lynette Mary Williams’ children challenged her final will signed eight years prior to her death in 2024 leaving all to charities, nothing to her five surviving children with an explanatory note stating they had barely any contact with her for an extended period other than to ask for money and had offered no help during the 2011 Christchurch earthquake, despite all living in Christchurch themselves.

Her children provided a different picture in the Family Court.

They described a childhood in which their mother was physical and psychologically abusive, requiring them to be taken into care for extended periods.  Her use of alcohol and drugs meant there was no stability or security for them at home, they said.

They disputed her statement that they provided no support to her following the Christchurch earthquake.

In the Family Court, Judge Hambleton ruled seventy-five per cent of Ms Williams $605,500 estate is to be divided equally between her five children, the balance to her four nominated charities; terms of her will rearranged using powers in the Family Protection Act.

This Act enforces parents’ moral obligation to ensure they provide adequately in their will for family members in need.

Evidence was given that only one of her surviving children is in employment, the other four are on government benefits.  None own their own home.  Each are in poor health.

Even if Ms Williams was not as poor a parent as portrayed by her children’s evidence, a wise and just person knowing circumstances of her children would have made some provision in her will for their financial support, Judge Hambleton said.

The court was told Ms Williams was specifically warned at time she signed her will that her dis-inherited children had the right to later challenge its terms under the Family Protection Act.

re Estate of Lynette Mary Williams – Family Court (19.06.26)

26.188