Having their Auckland family home held in a family trust forced Audrey Cadness to jump through multiple legal hoops after estranged spouse Kyle Aspinall refused to engage in any meaningful discussions for sale of their home, leading eventually to Kyle’s removal as trustee and court approval for sale of the property.
The High Court was told the two lived together in a de facto relationship for fourteen years ending 2018. Their sole major asset, a house at Buckleys Track, Paremoremo, was purchased in 2008 with title held in name of the Aspinall Family Trust. Both were trustees. An independent corporate trustee is a third trustee.
After their 2018 separation, the property was tenanted for some four years, before Mr Aspinall resumed occupation without paying rent to the Trust.
Evidence was given of ASB Bank issuing repeated Property Law Act notices threatening a mortgagee sale when mortgage payments fell behind. In each case, Mr Aspinall belatedly paid arrears due.
Ms Cadness learnt to her surprise that she was guarantor of a sometimes overdrawn ASB mortgage-linked personal account in her spouse’s name; money used to fund her spouse’s company Exceed Online Ltd, she said.
ASB Bank made the signed document containing her guarantee available to her for inspection. She told the High Court the guarantee must have been included in the multiple legal documents her spouse put in front of her for signature from time to time.
She told the High Court her spouse had refused to engage in discussions for the Trust’s sale of Buckleys Track.
A Trustee Act notice was served on Mr Aspinall removing him as trustee. His failure to respond within the required twenty working days meant he was automatically removed as trustee.
The two remaining trustees then asked the High Court give Trustee Act ‘blessing’ for sale of Buckleys Track. ‘Blessing’ protects them from any later comeback from Mr Aspinall alleging the sale was rigged to Ms Cadness’ advantage.
Justice Walker approved sale of Buckleys Track with the net proceeds divided equally between the two after repayment of the ASB mortgage and repayment of monies advanced by a family trust controlled by Ms Cadness and her father.
Evidence was given that Buckleys Track had a potential net equity of about $1.4 million as at late 2024.
Mr Aspinall did not defend the court application.
For pragmatic reasons, Ms Cadness said she would not challenge ASB recovery from sale proceeds that money lent to Mr Aspinall for his personal use though his company Exceed Online.
She will be claiming this borrowing was Mr Aspinall’s personal debt, in any later relationship property wash-up, she said.
Aspinall Family Trust v. Aspinall – High Court (26.02.25)
25.073