Six hectares of land on the Weiti River near Whangaparaoa Peninsular was settled on a charitable trust by Andrew Weatherspoon in 1901. His descendants improperly treated the land as their own, in breach of trust, ruled the High Court when current trustees challenged a lease over the property.
The land on Duck Creek Road at Stillwater was transferred by Andrew Weatherspoon on trust to his two sons Robert and Andrew in July 1901. Terms of the trust required the land to be used as a burial ground generally for local inhabitants and specifically for members of the Weatherspoon family. The trust allowed part of the land to be leased, earning income for upkeep and maintenance of the burial ground. At the time the trust was created, Andrew’s first wife and their eldest daughter had pre-deceased him and were both buried on the property. Andrew (senior) joined them, buried on the land when he died a few months after setting up the trust.
The High Court was told Andrew senior’s sons as trustees made little effort to comply with terms of the trust. They leased out the land, but rentals were not used to maintain the burial sites. Headstones were at one point buried to accommodate stock management. Following Andrew senior’s burial, no one else was ever interred at the site. The Trust was left without trustees after Robert and Andrew junior died without appointing replacement trustees.
Attempts to sell the land in 1987 triggered a recognition that the land was held in trust. High Court orders followed; Fred Thorburn, a descendant of Andrew senior, was appointed as replacement trustee. The Trust was confirmed to be a charitable trust. It promised a benefit for the local community as a burial ground, though in fact it had never been used as such.
More than a century after the Trust was established, current trustees Craig (son of Fred Thorburn) and Carly Thorburn challenged terms of a lease signed by Craig’s father as prior trustee. It transpired Fred had leased the Duck Creek property in perpetuity at a below market rental coupled with a side deal in which he received $250,000. This side deal roughly equated to the then market value of the property, but was described as being compensation to Fred for his costs in maintaining the land and payment of rates. On Fred’s death, Duck Creek lease payments were paid to his widow. In the High Court, Justice Powell ruled the in perpetuity lease breached terms of the Trust: it did not physically separate the burial ground from farming activities and a requirement to fence blocked public access. A below market rental frustrated aims of the Trust. Current trustees indicated they were open to negotiating new lease terms which did comply with the Trust.
Lusty v. Thorburn – High Court (15.07.21)
21.123