The Public Trustee v The Attorney-General Guide Hill Station Ltd and Others

• Jurisdiction: New Zealand
• Judge: Gendall J
• Judgment Date: 08 November 2016
• Neutral Citation: [2016] NZHC 2669
• Docket Number: CIV-2016-476-000026
• Court: High Court
• Date: 08 November 2016

In the Matter of Burnett Mount Cook Station Charitable Trust

Between

The Public Trustee

Substituted Applicant

Michael Askin, Trustee of the Burnett Mount Cook Station Charitable Trust Original

First Applicant

Joseph Gordon Butterfield Derek John Taylor Euwan Boyd Lindsay Hilson Original

Second Applicants

and

The Attorney-General Guide Hill Station Limited Linda Beverley Sundberg Janine Nora Sundberg Clint Miles Alana Miles David Gould

Parties Directed to be Served

Neville John Cunningham Mount Cook Trophy Hunting Limited Maureen Myra Vance David Michael Lawry Royal Forest and Bird Protection Society of New Zealand Incorporated Katrina Griffiths

Subsequent Parties (Objectors)

[2016] NZHC 2669

CIV-2016-476-000026

IN THE HIGH COURT OF NEW ZEALAND

TIMARU REGISTRY

Application for directions under s66 Trustee Act 1956 (“TA”) (right of trustee to apply to court for directions) for the sale of the property owned by the Trust — the Public Trustee had been appointed as the Trustees — the settlor had established a charitable trust known as the Burnett Mount Cook Station Charitable Trust to preserve and protect the natural and historic heritage and values of the property and its surrounds — the Trustees had purported to enter into a sale agreement for part of the trust property after their appointment as Trustees had expired — the Trust deed conferred on the Trustees the power to dispose of property — whether the sale should be approved under s66 TA.

Appearances:

R J Hopkins for Substituted Applicant — Public Trustee (only on 4 October 2016)

A Powell and A Dixon for Attorney General

J V Ormsby, H T Shaw and S D Campbell for Original First and Second Applicants

P J Page for Guide Hill Station Limited

G A Hair and M J McKay for L and J Sundberg

T J Castle for N Cunningham and Mount Cook Trophy Hunting Limited (present only on 4 October 2016)

P Anderson for Royal Forest and Bird Protection Society of New Zealand Incorporated

N Cunningham — Appearing in Person and for Mount Cook Trophy Hunting Limited (but only on 15 and 16 September 2016) — T J Castle Counsel Appearing 4 October 2016

K Griffiths — Appearing in Person M M Vance — Appearing in Person

D Lawry — Appearing in Person (present only on 15 and 16 September 2016)

J Finlayson — Appearing in Person

Professor H Tane — Appearing in Person (present only on 4 October 2016)

JUDGMENT OF Gendall J

Table of Contents

	Para No
Introduction	[1]
Present application	[6]
Procedural History	[11]
Background facts	[26]
Section 66 application	[44]
The law on s 66 applications	[50]
Parties' positions on s 66 application	[60]
— Public Trustee's position	[61]
— Attorney-General's position	[64]
— Original Applicants' position	[67]
— Guide Hill Station Limited and Gould Interests' position	[75]
— Position of L and J Sundberg in opposition	[79]
— Position of N Cunningham and Mount Cook Trophy Hunting Limited in opposition	[84]
— Position of Royal Forest and Bird Protection Society of New Zealand Incorporated in opposition	[87]
— Position of K Griffiths in opposition	[92]
— Position of M Vance in opposition	[93]
— Position of D Lawry in opposition	[95]
— Position of J R Finlayson	[99]
— Position of Professor H Tane in opposition	[100]
Discussion	[101]
Conclusion	[138]
Decision/Direction	[139]
Costs	[140]
Addendum	[142]

Introduction

1 Since the 1860's, three generations of the Burnett Family have farmed land in the Mackenzie Country near Mount Aoraki (Mount Cook) now comprising about 2610 hectares known as Mount Cook Station and Cox's Downs (the Property). The Property and the surrounding areas have been described as iconic and of significant natural beauty. It was last farmed by a member of the Burnett family, the late Mr Donald Mount Cook Burnett (Donald). He farmed the Property throughout his life until his death on 15 July 2010 at about age 95.

2 About eight months before his death, on 11 November 2009, Donald as settlor established a charitable trust known as the Burnett Mount Cook Station Charitable Trust (the Trust), the purposes of which were broadly to preserve and protect the natural and historic heritage and values of the Property and its surrounds. The original trustees appointed were Joseph Gordon Butterfield (Mr Butterfield) and Derek John Taylor (Mr Taylor). Other trustees were purported to be appointed being Euan Boyd Lindsay Hilson (Mr Hilson) and Michael Askin (Mr Askin).

3 Sometime following Donald's death, issues arose concerning the Trust. These concerned questions over the continuation of the role of the original trustees (their appointment as trustees having expired) and a decision they had purported to make to sell the Property which resulted in a sale agreement being signed. As a result, various applications were made to this Court. Broadly speaking, those applications were to appoint new trustees of the Trust, to vary the Trust and to obtain directions from the Court that the sale of the Trust property was appropriate and should proceed.

4 In particular, the three specific applications brought by those parties Messrs Butterfield, Taylor, Hilson and Askin (whom together I will refer to hereafter as “the original applicants”) sought:

• (a) The appointment of Mr Askin and Mr Hilson as trustees of the Trust under s 51 Trustee Act 1956 (the TA); and

• (b) The approval of a scheme varying the Trust under s 32 Charitable Trusts Act 1957 (the CTA), (the purpose of which it was said was to permit sale of the Property); and

• (c) Directions from the Court in terms of s 66 of the TA for the sale of the Property owned by the Trust.

5 As to the first application noted at [4](a) above, a short time ago, on 16 September 2016, I dismissed that application, but instead appointed the Public Trustee as sole trustee of the Trust. Then on 4 October 2016, the second application noted at [4](b) above for approval of the s 32 CTA scheme was abandoned. Also on 4 October 2016 I heard final submissions from a range of parties directed to the last remaining application before the Court referred to at [4](c) above. It is that application which is the subject of this judgment. Specifically it seeks general directions under s 66 of the TA, “for approval of the sale of properties known respectively as Mount Cook Station and Cox's Downs under s 66 of the TA 1956”.

Present application

6 The s 66 application, as I have noted, was originally advanced in the names of the original applicants.

7 Consequent upon the 16 September 2016 appointment of the Public Trustee as trustee of the Trust, the s 66 application, however, has been effectively taken over by the Public Trustee as applicant. Before me on 4 October 2016 Ms Hopkins, counsel for the Public Trustee, confirmed that the Public Trustee did wish to continue with this particular application.

8 The s 66 application is generally supported by the original applicants and also by Guide Hill Station Limited and the Gould Family (who are purchasers under an unfulfilled agreement for sale and purchase of the Property which the former trustees purported to enter into).

9 The application is opposed by a number of parties. These are Ms L and Ms J Sundberg, Mr N Cunningham and his company Mount Cook Trophy Hunting Limited, the Royal Forest and Bird Protection Society of New Zealand Incorporated, Ms K Griffiths, Ms M Vance, Mr D Lawry, Ms J Finlayson, and Professor H Tane.

10 The Attorney-General (represented before me by counsel Mr Powell) appearing in his role as protector of charities, has confirmed that he simply abides the decision of the Court.

Procedural history

11 It is useful at this point to set out more fully some history of this proceeding to provide context to the present application.

12 The s 66 application formed part of what was an initial application made to this Court on 10 May 2016 by the original applicants. That application was one specifically seeking:

• (a) Approval of the sale of properties known respectively as “Mount Cook Station and Cox's Downs”…under s 21(1)(b) of the Charitable Trusts Act 1957.

• (b) Orders under s 51 of the Trustee Act 1956 for the appointment of Michael Askin and Euan Boyd Lindsay Hilson as new trustees.

• (c) Directions under s 66 Trustee Act 1956 concerning the sale of [Mount Cook Station and Cox's Downs] and the appointment of new trustees.

13 Subsequently in July 2016, those parties brought and advertised a further application under Part 3 of the CTA to vary the purposes of the Trust. The essential purpose of this later application was to amend the objects specified in the Trust Deed so that the original trustees were able to secure the sale of the Property to Guide Hill Station Limited pursuant to the agreement for sale and purchase they had entered into.

14 At the outset, the application under s 21(1)(b) of the CTA noted at [12](a) above was abandoned. It was withdrawn on the basis that the original applicants had not incorporated the Trust into a board pursuant to the CTA and therefore this section had no application.

15 I have already noted that the initial and subsequent applications were brought by the original applicants. So far as they are concerned, however, the original trusteeships of Mr Butterfield and Mr Taylor, as first trustees of the Trust, had ended after their initial respective five year terms lapsed and they had not been reappointed. Similarly Mr Hilson, who Mr Butterfield and Mr Taylor had subsequently endeavoured to appoint as an additional trustee, was not properly appointed.

16 In the meantime, as an interim measure, this Court had appointed Mr Askin as an interim trustee to enable the application noted at [13] above to proceed. This was the application to approve a scheme to vary the purposes of the Trust under...