MOORE V MANUKAU CITY COUNCIL AND ORS HC AK CIV 2009-404-5126

MOORE V MANUKAU CITY COUNCIL AND ORS HC AK CIV 2009-404-5126

Given the strong and direct evidence of an intention to dissipate trust assets and a seriously arguable right of indemnity in favour of the retired trustee, the Court exercised its discretion to grant an interim freezing order joining the current trustee and restraining disposition of specified trust properties pending further order.

Citation
openlaw-b732043a_8162_4a13_af28_765e00b6709c.pdf
Parties
Plaintiffs: Michael Kenneth Moore and Yvonne Daniela Maria Teresa Moore as trustees of the Moore Family Trust; First Defendant: Manukau City Council; Second Defendant: Brian Donald Metge; Second Defendant: Colin Ian Devcich; First Third Party: Leonie Juene Metge
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 September 2009
Procedural Posture
Civil Freezing Order (interim) Application Under High Court Rules Part 32 / Interlocutory Without‑notice Application; Interim Order Made (until Midday 23 September 2009)
Outcome
Interim freezing order granted; first third party joined; matter adjourned to mention list for further consideration
Legal Topics
Freezing Order (mareva), Trustee Indemnity, Asset Preservation, Non Delegable Duty, Building Defects, Warranties in Sale of Land
Trusts Civil Procedure Property Law Equity Remedies Freezing Order (mareva) Trustee Indemnity Asset Preservation +3 more

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Parties

Michael Kenneth Moore and Yvonne Daniela Maria Teresa Moore as trustees of the Moore Family Trust

Plaintiffs

Manukau City Council

First Defendant

Brian Donald Metge

Second Defendant

Colin Ian Devcich

Second Defendant

Leonie Juene Metge

First Third Party

Procedural Posture

Civil Freezing Order (interim) Application Under High Court Rules Part 32 / Interlocutory Without‑notice Application; Interim Order Made (until Midday 23 September 2009)

Legal Issues

  1. 1 Whether a former trustee can obtain a freezing order to protect a right of indemnity against trust assets
  2. 2 Whether there was a real risk of dissipation of trust assets by a trustee
  3. 3 Whether the retiring trustee retains a right of indemnity despite having signed a transfer though not the sale agreement

Ratio Decidendi

Given the strong and direct evidence of an intention to dissipate trust assets and a seriously arguable right of indemnity in favour of the retired trustee, the Court exercised its discretion to grant an interim freezing order joining the current trustee and restraining disposition of specified trust properties pending further order.

Court Disposition

Interim freezing order granted; first third party joined; matter adjourned to mention list for further consideration

Orders

  • Join Leonie Juene Metge as first third party
  • Restrain Brian Donald Metge and Leonie Juene Metge from disposing of, dealing with or diminishing the value of 145 Wisely Road, West Harbour (CFCR NA53C/1208) and Unit 4H, 250 Richmond Road, Ponsonby (CU TR NA122A/277) pending further order of the Court (order to enure until midday 23 September 2009 unless varied or...