Green v Green, Fisher and Others

• Jurisdiction: New Zealand
• Judge: Winkelmann J
• Judgment Date: 03 June 2015
• Neutral Citation: [2015] NZHC 1218
• Court: High Court
• Docket Number: CIV-2013-404-4840
• Date: 03 June 2015

BETWEEN

In the Matter Of The Hugh Green Trust and the Hugh Green Property Trust

Under Part 18 of the High Court Rules and section 51 of the Trustee Act 1956

Maryanne Green

Plaintiff

and

John Patrick Green

First Defendant

Michael John Fisher

Second Defendant

John Patrick Green, Michael John Fisher, Frances Kathleen Green and John James Gosney (as presently named trustees of a trust known as the Hugh Green Trust, settled by deed dated 7 June 1968)

Third Defendants

John Patrick Green, Michael John Fisher, Frances Kathleen Green And John James Gosney (as presently named trustees of a trust known as the Hugh Green Property Trust, settled by deed dated 20 March 1989)

Fourth Defendants

BETWEEN

In the Matter of the Estate of Hugh Green, and the grant of probate of a will dated 26 April 2012 by the High Court at Auckland under CIV-2012-404-004791 on 21 August 2012

Under Part 27 and Rule 27.34 of the High Court Rules

Maryanne Green

Plaintiff

and

Michael Fisher, John Patrick Green, Frances Kathleen Green and Robert Narev

Defendants

[2015] NZHC 1218

CIV-2013-404-4840

CIV-2013-404-3676

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Challenges to the validity of the exercise by the settlor of trusts of powers of appointment and removal of trustees, together with an application for recall of a grant of probate of a will — the trusts controlled businesses and family interests worth millions of dollars — settlor had been diagnosed with terminal cancer — during the period up to his death he had made decisions removing his daughter as a trustee and director and including his son, another daughter and a lawyer as trustees and directors — consideration given to the lawyer's role and professional responsibilities in respect of actions taken — importance of duties of independent trustees — whether the settlor/testator had capacity and whether the decisions had been vitiated either by lack of capacity or undue influence — whether the plaintiff was estopped from relying on a cancellation of her removal as a trustee, or any reappointment, as a result of the application of estoppel by convention — whether the various removals and appointments were invalid because the settlor exercised these powers in breach of his fiduciary duty — whether the Court should exercise its jurisdiction to substitute new trustees for the existing trustees defendants on the grounds of their past conduct and on-going hostility to the first and second plaintiffs.

Appearances:

V Bruton, G Harley, P A Brown for plaintiff

SBW Grieve QC for first defendant in CIV-2013-404-4840

R B Stewart QC, R B Lange, J Ryan for all defendants in CIV-2013-404-4840

H Waalkens QC for defendants in probate proceeding CIV-2013-404-3676

S Hunter, S Ambler for Ms Piper

JUDGMENT OF Winkelmann J

	Table of contents	Para
1	Introduction	[1]
2	Factual background	[12]
2.1	The legal entities	[12]
2.2	The people	[16]
2.3	Events leading up to the challenged decisions	[28]
2.4	First challenged decision: appointment of John and Frances as trustees of three trusts on 8 November 2011	[72]
2.5	Second challenged decision: appointment of John and Frances as directors of the main companies in the Green Group on 5 December 2011	[73]
2.6	Third challenged decision: removal of Maryanne as a trustee on 20 December 2011	[74]
2.7	Fourth challenged decision: appointment of Mr Fisher as trustee on 29 March 2012	[76]
2.8	Fifth and sixth challenged decisions: appointment of Mr Fisher as director of all trust owned companies on 2 April 2012, and the removal of Maryanne as a director of all trust owned companies on 2 April and 29 April 2012	[77]
2.9	Seventh challenged decision: Hugh'sexecution of a new will on 26 April 2012 appointing Mr Fisher, John and Frances (together with Mr Narev) his executors and trustees	[80]
2.10	Events after the execution of Hugh'slast will	[82]
3	The issues raised in this proceeding	[88]
4	What are the principles governing the challenge to Hugh'scapacity to have exercised the various powers and to execute his last will?	[89]
4.1	Understands the nature of the act and its effects	[92]
5	What are the principles governing the challenge based on undue influence?	[100]
6	Evidence relating to Hugh'scapacity	[104]
6.1	Expert medical evidence	[114]
6.2	Family and friends	[123]
	Credibility issues	[123]
	The evidence of family and friends as to capacity	[133]
6.3	Lawyers and business associates	[151]
6.4	Medical professionals involved in Hugh'scare	[168]
6.5	Analysis	[187]
7	First challenged decision — capacity: appointment of John and Frances as trustees on 8 November 2011	[191]
7.1	Appointment ill advised, and contrary to long standing plan as	[195]
	evidence of lack of capacity?
7.2	Mr Fisher's involvement	[197]
7.3	Circumstances surrounding the execution of the documents	[212]
7.4	Analysis	[216]
8	First challenged decision — undue influence: appointment of John and Frances as trustees on 8 November 2011	[221]
8.1	Analysis	[239]
9	Second challenged decision — capacity: appointment of John and Frances as directors of the main companies in the Green Group on 5 December 2011	[260]
9.1	Evidence relating to capacity	[264]
10	Second challenged decision — undue influence: Hugh's exercise of power as trustee shareholder (together with John and Frances) to appoint John and Frances directors of main Hugh Green Group companies on 5 December 2011	[269]
10.1	Were the resolutions validly passed?	[288]
11	Third challenged decision — capacity: removal of Maryanne as trustee on 20 December 2011	[304]
11.1	Events leading up to execution of deeds	[304]
11.2	Background to execution of deeds	[329]
11.3	Other evidence relevant to capacity	[332]
11.4	Analysis	[346]
12	Third challenged decision — undue influence: removal of Maryanne as trustee on 20 December 2011	[350]
13	Fourth challenged decision: appointment of Mr Fisher as trustee on 29 March 2012	[367]
13.1	Events leading up to appointment	[367]
	Letter of 22 December 2011	[367]
	Steps to remove Maryanne in January 2012	[373]
	Working together in February and March 2012	[391]
	28 March board meeting	[412]
	The instruction to appoint Mr Fisher as trustee	[420]
	Circumstances of execution	[424]
13.2	Evidence as to capacity	[426]
13.3	Undue influence	[429]
14	Fifth and sixth challenged decisions — capacity: appointment of Mr Fisher as a director and removal of Maryanne as a director on 2 April 2012	[438]
15	Fifth and sixth challenged decisions — undue influence: appointment of Mr Fisher as a director and removal of Maryanne as a director on 2 April 2012	[447]
16	Seventh challenged decision — capacity: execution of a new will on 26 April 2012	[449]
16.1	The new will	[449]
16.2	Events leading up to the new will	[450]
	The instruction	[453]
16.3	The execution of the new will	[455]
16.4	Analysis	[464]
17	Seventh challenged decision — undue influence: execution of a new will on 26 April 2012	[470]
18	Fifth cause of action: was Maryanne re-appointed trustee on 21 December 2011?	[473]
18.1	Defence of estoppel by convention	[484]
19	Third cause of action: improper exercise of fiduciary powers	[493]
19.1	Appointment of John and Frances	[494]
19.2	Removal of Maryanne as trustee	[499]
19.3	Appointment of Mr Fisher	[500]
19.4	Trustee defendants’ position	[501]
19.5	Relevant principles	[504]
19.6	Analysis	[508]
19.7	Background to the allegations of dishonesty	[513]
	Trip to Mangatangi	[514]
	Mr Staub'sinvestigation	[527]
19.7	Transactions investigated by Ms Payne	[534]
	Cash cheques signed by John Green	[538]
	Cash payment for C Kennedy	[543]
	Cheque cashed at Auckland Trotting Club	[546]
	Payment to J W & J M Langdon	[548]
	Cash payment for Overdevest	[552]
	Interlaken Livestock Ltd	[554]
	Stock discrepancies	[557]
	Defence position in connection with these transactions	[562]
19.8	Allegation that Hugh did not exercise power of removal of Maryanne and removal of Mr Fisher in the best interests of the beneficiaries	[581]
20	Fourth cause of action: substitution of new trustees	[588]
20.1	Principles to be applied	[598]
20.2	John Green	[608]
	Misconduct in the administration of the trusts — fraud on a power	[608]
	Dishonesty	[609]
	Hostility	[610]
	Other conduct	[611]
20.3	Michael Fisher	[612]
	Misconduct in the administration of the trusts — fraud on a power	[612]
	Hostility	[613]
	Conflicts of interest	[622]
20.4	Frances Green	[629]
	Misconduct in the administration of the trusts — fraud on a power	[629]
	Hostility	[630]
	Conflicts of interest — misconduct	[633]
20.5	Mr Gosney	[645]

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