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appointment and removal of trustees, General, litigation, Powers of attorney, Removal of trustees

Family dispute ends in a subpoena too far

Some disputes have the plots of a war movie. Everything starts fine until the hostilities begin and everything gets messy. Sometimes this just leads to someone carrying out an attack that doesn’t make sense…

The defendants in the case of Triezenberg and Dodd v Mason, Alexander and Wendy Mason, were married in 1959 and had three children. Along the way they settled the Mamari Trust to provide for themselves during their lifetimes and also to provide a capital distribution for each of their children. The two plaintiffs and the two defendants were trustees. However, in 2012 Wendy, was diagnosed with degenerative dementia. They decided to re-order their affairs.

As a result the Mamari (No 2) Trust was settled in 2013. At the time the No 2 trust was settled the original Mamari Trust had cash investments of over $3 million plus a number of properties.

Significant assets were transferred to the No 2 trust. The plaintiffs together with Alexander were appointed as trustees of the new trust. Vicki Triezenberg, Alexander and Wendy’s daughter was appointed a trustee, along with adviser Paul Dodd. Vicki also held property and care and welfare EPOAs on behalf of Wendy, as well as Alexander’s personal care and welfare EPOA.

The powers in the two trusts were not identical – whereas majority decision-making was allowed in the Mamari Trust, in the No 2 trust the trustees needed to be unanimous.

Wendy’s health continued to deteriorate. In 2015 she was hospitalised and then placed in a rest home. Vicki claimed that at this time Alexander began to make large withdrawals from Wendy’s savings and was aggressive toward her carers so that she was required to leave the rest home.

Alexander and Vicki fell out. Vicki cancelled Wendy’s EFTPOS card. Alexander revoked Vicki’s power of attorney. Vicki claimed that Alexander’s obstructive behaviour led to payments not being made and the end of a carer arrangement.

Something had to give. Vicki and Paul Dodd sought to have Alexander removed. Alexander counterclaimed that Vicki’s power of attorney was not validly activated because Wendy was not suffering from dementia after all, and that Vicki and Paul should be removed for mistreating him.

Which all led to the matter of a subpoena.

Alexander’s counsel sought to subpoena the No 2 Trust’s solicitor. In order to demonstrate that the Trust’s lawyer was conflicted in acting against Alexander, counsel sought evidential information relating to the invoices rendered by trial counsel for the Trust. When the Trust’s lawyers decided to stand aside, Alexander’s counsel decided to proceed without the subpoena – mission accomplished.

Or was it?

Instead the Trust sought indemnity costs from Alexander. The judge, Whata J, was also clearly less than impressed by the approach taken. Rightly or wrongly the subpoena application had prevented the Trust’s lawyer from acting. It was ill-conceived, especially coming just a month before trial. Indemnity costs were awarded.

References

  • Triezenberg and Dodd v Mason [2017] NZHC 2271

 

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