MA PAYNE TRUSTEE LTD AS TRUSTEE OF THE M.A. PAYNE FAMILY TRUST v NEW PLYMOUTH FAMILY COURT [2019] NZHC 1215

MA PAYNE TRUSTEE LTD AS TRUSTEE OF THE M.A. PAYNE FAMILY TRUST v NEW PLYMOUTHFAMILY COURT [2019] NZHC 1215 [30 May 2019]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV 2018-443-072[2019] NZHC 1215BETWEEN MA PAYNE TRUSTEE LTD AS TRUSTEEOF THE M.A. PAYNE FAMILY TRUSTFirst PlaintiffAND DOREEN EDNA MALONEY-COLES ANDRAYMOND JOHN KURTH AND JAMESPETER FISHERSecond PlaintiffsAND NEW PLYMOUTH FAMILY COURTFirst DefendantAND JOHN PATRICK LARMER AND SHEREEANN PAYNE AS TRUSTEES OF THEBERNARD AND NANCY PAYNEFAMILY TRUSTSecond DefendantsAND SHEREE ANN PAYNEThird DefendantAND STUART TRUNDLE AND NEIL ROBERTMAULDER AS EXECUTORS ANDTRUSTEES IN THE ESTATE OFMARK ANDREW PAYNEFourth DefendantsAND NICHOLSONSFifth DefendantsAND NANCY PAYNESixth DefendantsHearing: 21 May 2019Counsel: M Phillipps, V Ammundsen and N Dennison for First and SecondPlaintiffsNo appearance by First DefendantP Wright for Second and Third DefendantsNo appearance by Fourth DefendantsN Faulkner for Fifth DefendantNo appearance by Sixth DefendantJudgment: 30 May 2019JUDGMENT OF ELLIS J[1] Mark Payne (Mark) died suddenly in March 2002. In his will, Mark left hispersonal belongings to his "spouse" and the residue of his estate to the M.A. PayneFamily Trust (the MAPFT). The primary beneficiaries of the MAPFT were Mark andhis children. The discretionary beneficiaries were Mark, his spouse, his children, theirspouses and any other person related to Mark "by blood, marriage or adoption of anydegree and of any kind and whether now living or born after the execution of thisdeed".1 The principal assets of the estate were a 48 hectare farm property at Oakurain Taranaki, Fonterra shares, 120 dairy cows and farm buildings and equipment.[2] At the time of his death Mark had been in a de facto relationship with ShereeMcNeill (Sheree) for around six months. It is not in dispute that this qualified her ashis spouse for testamentary purposes. Sheree had two children by a previousrelationship. Mark had no children of his own.[3] After Mark's death both Sheree and Mark's parents (Bernard and Nancy)brought claims against Mr Payne's estate under the Family Protection Act 1955 (theFPA). Those claims were settled, and consent orders were made in the Family Courtin 2003. The effect of those orders was that the residue (farm, shares etc) of Mark'sestate bypassed the MAPFT and was, instead, transferred to the Bernard and NancyPayne Family Trust (BNPFT) for the benefit of Bernard, Nancy, Sheree and her twosons.21 Also included as discretionary beneficiaries were "any charitable trust or charitable purpose orcharitable institution".2 The details of the transfer will be discussed later in this judgment.[4] The second plaintiffs are three of Mark's cousins.3 As such they fall within the"blood relative" class of discretionary beneficiary under the MAPFT. There is nodispute that they were unaware of this status until 2018. They have now effected thereplacement of the former MAPFT trustees and, in these proceedings, ask the Court toundo what occurred in 2003. More specifically they now seek to have the consentorders set aside, as a first step to further action they wish to take against the second,third and fifth defendants for knowing assistance and knowing receipt.[5] Before turning to consider their claim, however, it is necessary to set out thenot uncomplicated background in a little more detail.BACKGROUND[6] In October 2001 Sheree and her two children (born 1997 and 1999) moved inwith Mark.[7] On 22 November 2001, Mark:(a) settled the MAPFT; and(b) executed his will.[8] The primary beneficiaries of the MAPFT were Mark and his children. As notedearlier:(a) Mark had no children at the time the MAPFT was settled and none atthe time of his death;(b) the discretionary beneficiaries were:(i) himself and his children (of which he had none);(ii) his spouse;3 It is not clear to me whether Mark has any more cousins, or other "blood relatives".(iii) any other person who is related to Mark "by blood, marriage oradoption of any degree and of any kind" whether living at thetime of execution or born later; and(iv) unidentified charities.[9] The Trust Deed provided that during the Trust Period the Trustees could:(a) pay or apply the income of the Trust Fund: to, for or towards the personal support, maintenance, comfort,education, advancement in life or otherwise for the benefit of such ofthe Discretionary Beneficiaries as may from time to time be living orin existence or such one or more of them at such time in such mannerand if more than one in such shares and proportions as the Trustees intheir absolute and uncontrolled discretion shall think proper and withpower to appropriate moneys for one or more DiscretionaryBeneficiaries to the exclusion of others.(b) pay or apply the whole or any part of the capital of the Trust Fund: to or for the benefit of such of the Discretionary beneficiaries asmay then be living or such one or more of them to the exclusion of theothers other of them at such times and if more than one in suchproportion and in such manner and subject to such terms andconditions as the Trustees shall think fit and, without limiting thegenerality of the forgoing, or towards the personal support,maintenance, comfort, education and advancement in life or otherwisefor the benefit of such beneficiary or beneficiaries.[10] There are no final beneficiaries separately named in the Trust Deed. Rather, itprovides:On the Vesting Day the Trustees shall pay the capital and income of the TrustFund as may then remain UPON TRUST to such one or more exclusively ofthe others or other of the Discretionary Beneficiaries and in such shares andproportions as the Trustees shall appoint.[11] The Trustees of the MAPFT were Mark and two of his friends, Steven Looneyand Neil Maulder (the Trustees).44 By deed dated 26 March 2018, Steven Looney and Neil Maulder retired as trustees andDoreen Maloney-Coles and Tracy Renata were appointed as trustees of the M.A. Payne FamilyTrust (MAPFT). By deed dated 16 April 2018 Doreen Maloney-Coles and Tracey Renata retiredas trustees and MA Payne Trustee Ltd was appointed sole trustee of the Trust. Ms Maloney-Colesis the director of MA Payne Trustee Ltd.[12] Mr Payne's will provided that his personal belongings would go to his spouse(which was defined to include a living de facto partner) and the rest would go to theMAPFT. The named Executors of his estate were Steven Looney and Neil Maulder.[13] A draft memorandum of wishes in relation to the MAPFT was prepared oninstructions by Mr Payne's lawyer (Mr Fitzgibbons of the firm Nicholsons, the fifthdefendant) and sent to Mr Payne on 27 November 2001 but was never signed. Itrecorded (inter alia) that:(a) if Mark were to leave a spouse or child, the Trust should operate fortheir benefit;(b) if Mark left no spouse or child, but if his parents survived him, the Trustshould operate for the benefit of his parents; and(c) otherwise, the trustees "might consider adding any special friends ofmine as beneficiaries and making provision for them from the TrustDeed and should also make provision for charities as follows: "5[14] On 27 March 2002 Mark was killed in a quad bike accident. Shortly afterwardsSheree changed her surname to "Payne".[15] Probate was granted on 11 April 2002. On 8 May 2002, the Oakura farm wastransferred to Messrs Looney and Maulder as Trustees and Executors of Mark's estate.The FPA proceedings[16] On 6 September 2002 Sheree's lawyer (Mr Matheson of Reeves MiddletonYoung) wrote to the lawyer for the Estate (Mr Fitzgibbons of Nicholsons) advising ofher intention to make a claim under Property (Relationships) Act 1976 and under theFPA.6 He also advised that Sheree had been experiencing some difficulties in hercommunications with Mr Looney.5 The draft required Mark to identify those charities for whom he wished to make provision. Itseems he had not done this by the time he died.6 A potential claim under the Law Reform (Testamentary Promises) Act 1949 was also flagged.[17] On 20 September 2002 the lawyer for Bernard and Nancy (Mr King of TillHenderson King) wrote to Mr Fitzgibbons noting that Mr Matheson had lodged a claimon behalf of Sheree,7 and advising that Bernard and Nancy would also be making aclaim either:8(a) under s 3(1)(e)(i) of the FPA, on the basis that they were being partlymaintained by Mark "through instalments on the vendor mortgage"being paid by him; or(b) on the basis that the court subsequently determines that it cannot makean order in favour of Sheree (ie under s 3(1)(e)(ii) of the FPA).[18] On 23 September Mr King (for Bernard and Nancy) wrote to Mr Fitzgibbonsmaking a proposal whereby:(a) Sheree would file her claim under the FPA;(b) that claim would be settled between Sheree and Bernard and Nancy onthe basis that the residuary estate would be divided as follows:(i) a 50 per cent share going outright to Sheree; and(ii) the other 50 per cent vesting in a new Trust with both incomeand capital being for the benefit of Bernard and Nancy duringtheir lifetimes but with the remainder reverting on their deathsto Sheree;(c) the new trust and Sheree would own the farming business in equalshares and as tenants in common with the trust's 50 percent sharetransferring on the Paynes' deaths to a trust for the benefit of Shereeand her sons.7 Although in fact that claim had not yet been filed.8 Sections 3(1)(e)(i) and (ii) now find form in ss 3(1A)(a) and 3(1A)(b)(ii) of the FPA respectively.For the purposes of this judgment the numbering applicable in 2003 will be used.[19] On 25 September Mr Matheson (for Sheree) wrote to Mr Fitzgibbons referringto Mr King's letter and addressing certain procedural matters, including that courtorders would be required because minors (Sheree's sons) were involved. Heconcluded by saying "If there are issues of concern, a meeting involving yourself,Roger Mori,9 myself and Dennis King might be appropriate".[20] On 24 October 2002, Mr Matheson filed Sheree's FPA claim against theExecutors in the Family Court, together with Sheree's affidavit in support in whichshe deposed (inter alia) that:(a) she was very close to Nancy and Bernard who regard her as theirdaughter in law and her children as their grandchildren;(b) she understood that Mark had acquired the farm from his parents sometime ago;(c) she and Mark had worked on the farm as a team;(d) she and Mark had been very close and were planning to have a childtogether;(e) Mark had loved her sons as if they were his own and wished for one ofthem one day to take over the farm;(f) the lawyer for Mark's parents had written to her lawyer with a proposalfor the distribution of Mark's estate;(g) she supported the settlement proposal but "there has been nosatisfactory response from the Trustees"; and(h) she was seeking to have Mr Looney removed as an Executor of theestate.9 Mr Mori (also of Nicholsons) was the Trustees' lawyer.[21] Sheree's affidavit annexed (inter alia) the MAPFT Deed, the letter containingthe settlement proposal and the draft trust deed for the proposed new trust.[22] Also filed on 24 October 2002 was a memorandum addressing service of theproceedings. It advised that Mark was an only child and had no children of his own.Then it stated:THE only other persons who would be entitled to pursue a claim under theFamily Protection Act 1955 are the Plaintiff's children and the Deceased'selderly parents - Bernard and Nancy Payne of New Plymouth, both aged intheir late seventies.THE Plaintiff and her children had an extremely good relationship with theDeceased and even though the relationship was of relatively short duration,the Deceased had accepted Sheree and her children as being his family. ThePlaintiff and the Deceased had intended the relationship to be permanent. Theyhad planned to marry and have a child. The Plaintiff continues to have anextremely good relationship with the Deceased's parents who have acceptedthe Plaintiff and her children as being part of the Payne family.THE M A Payne Family Trust, which is entitled to the entire residue of theEstate, involves uncertainty as to what the Plaintiff (and other potentialbeneficiaries) might receive. The Trustees have a wide discretion.THERE is currently an agreement between the Plaintiff and the deceased'sparents as to how the estate should be distributed. Hopefully this will form thebasis of Consent Orders. However, at this stage, the Trustees have notindicated their willingness to consent to the proposal.THE only Order sought at this stage is an Order that the proceedings be servedon the deceased's parents, Bernard and Nancy Payne and the Defendants.Bernard and Nancy Payne have already instructed Till Henderson King inrespect of the matter and it is anticipated that Till Henderson King will beauthorised to accept service.[23] The Court then directed that the proceedings be served on Bernard and Nancy.[24] On 6 November 2002, Mr Looney resigned as an Executor of Mark's estateand was replaced by Stuart Trundle (Mr Trundle and Mr Mauldey will henceforth bereferred to as the Executors). Mr Looney remained as a Trustee of the MAPFT.[25] On 5 December 2002, Bernard and Nancy filed a statement of claim under theFPA in which they alternatively claimed:(a) they were being maintained (wholly or partly or were legally entitledto be maintained wholly or partly) by Mark at the date of his death; or(b) at the date of the claim there was no living de facto in favour of whomthe court could make an order and no child of a de facto relationship ofthe deceased.[26] And on 11 December 2002, the Trustees' lawyer (Mr Mori) filed a "Notice ofAppearance Reserving Rights", noting that "[the] Trust is a residuary beneficiary of[Mark's] estate [and] as Trustees of the Trust they desire to reserve their rights withoutfiling a Statement of Defence".[27] Sometime after this, the Executors filed an undated statement of defence toboth FPA claims recording that they " intend to adopt a neutral stance on thequestion of whether or not the Plaintiff[s] should receive an award from the deceased'sEstate".[28] On 23 December 2002 Mr Fitzgibbons wrote to Mr Looney in which he said:As you are aware, Sheree and Bernard and Nancy Payne have each filedproceedings under the Family Protection Act, seeking greater provision fromMark's Estate.I think you have probably seen a letter dated 23 September 2002 from TillHenderson King (acting for Bernard and Nancy), setting out a proposal towhich the Payne Snrs and Sheree all agree. In case you have not seen thisletter, a copy is attached.The Trustees of the Estate have given consideration to the proposal put onSheree's, Bernard's and Nancy's behalf.The Trustees seek your comment as a Trustee of the M A Payne Family Trustto a counter-proposition, which would involve:• the formation of a new Trust in which the proposed discretionarybeneficiaries would be Bernard, Nancy, Sheree and her children;• it would be proposed that the Trustees of the new Trust wouldinclude a representative of Bernard and Nancy,• it is proposed that the Trust Deed contain a provision requiringthat Trustees' decisions be unanimous;• it is proposed that the Trust Deed would include a specificprovision that the farming operation be retained during thelifetime of Bernard and Nancy or the survivor of them;• it is proposed that there be a specific provision for payment of aminimum monthly amount to Bernard and Nancy from the newTrust, perhaps initially in continued reduction of their mortgagedebt, and thereafter by way of distributions of income or capital;• it is proposed that the power to appoint new Trustees be vested inSheree's nominees, but with provision that the Trusteerepresenting Bernard's and Nancy's interests not be able to beremoved during the lifetime of the survivor of Bernard and Nancy,that Bernard and Nancy have power to nominate another Trusteein the event that their original representative should die or retire,and that their representative automatically retire on the death ofthe survivor of Bernard and Nancy;• it is proposed that the remaining Estate assets (if any) be utilisedfirstly in payment of all parties' costs, including reimbursement toBernard and Nancy of costs already paid, with the balance (if any)being paid to the Trustees of the M A Payne family Trust as thebeneficiary in the Estate.The Trustees of the Estate wish to respond to the claims made by Sheree,Bernard and Nancy as early as possible in the New Year. The Trustees of theEstate ask that you give consideration to the propositions outlined above, andlet them have your views as soon as possible.[29] Mr Looney did not reply to that letter and Mr Fitzgibbons chased him up byletter dated 22 January 2003. On 26 January 2003 Mr Looney met with Mr Trundleafter which he wrote a handwritten note to Mr Fitzgibbons advising that afterdiscussions with Mr Trundle:(a) he fully endorsed the alternative trust structure "that seeks to secure thefuture of Bernard & Nancy"; and(b) he believed that after their deaths "the assets of M Payne family trustshould be held in trust and/or sold up and distributed to the benefit ofmore than 1 person, namely extended members of the Payne family andvarious charities that Mark supported during his lifetime".[30] On 4 February 2003 Mr Matheson advised the Family Court that the settlementproposal had been put to the Trustees by his client (Sheree) and by Mark's parents"who are the only other interested parties". He said that because the Trustees had notyet accepted the proposal, a settlement conference was required.10[31] On 6 March 2003 the lawyer for the Executors (Mr Fitzgibbons) put forwardan amended settlement proposal which involved all the farming assets of the Estate tobe vested in a new Trust. This is the proposal that was eventually agreed to and is setout in more detail below. But for present purposes it is relevant to note that in thecourse of negotiations it was confirmed (at the request of Mr Fitzgibbons for theExecutors) that:2. The existing liability to Mr and Mrs Payne Snr ($14,480.00 as at31 March 2002, but since reduced) is to be assumed by the new Trust.3. Payments to be made by the new Trust to the parents are to bemaintained at least at the present level of approximately $1,100 permonth. The present payments are in reduction of the loan, but it isintended that monthly payments of at least that amount continue afterthe loan is repaid[32] On 7 May 2003, a consent memorandum was filed with the Family Court andsigned by:(a) counsel for Sheree;(b) counsel for Bernard and Nancy Payne; and(c) counsel for "defendants [Neil and Stuart as Executors and Trustees ofthe Estate] and M A Payne Family Trust [Neil and Stephen as Trusteesof the Trust]".[33] The consent memorandum recorded that settlement had been reached on thefollowing terms:10 It is not entirely clear to me whether the reference here to the Trustees means the Trustees of theMAPFT or the Executors.5.1 The net cash assets of the estate are to be used to pay the reasonablecosts of the parties. The balance is to be transferred to the M A PayneFamily Trust and will be used for charitable purpose in accordancewith the deceased's previously expressed wishes;5.2 The farming operation including the land and buildings, plant andequipment, stock and dairy company shares are to be transferred to anew trust. Sheree and her children (including future children) and thedeceased's parents will be the discretionary beneficiaries, thedeceased's parents as to income only. The trustees will comprise anominee of the deceased's parents and a nominee of Sheree. Thenominee of the deceased's parents may not be dismissed during theirlifetime (except by Court order for misconduct) but will be obliged toretire on the death of the survivor of the deceased's parents;5.3 All trustee decisions are to be unanimous;5.4 The Power of Appointment is to be held by Sheree or her nomineessubject to the deceased's parents being entitled to nominate areplacement trustee in the event of the death, disability or retirementof their original nominee;5.5 The Trust Deed is to contain a provision that the farming operationnot be disposed of during the lifetime of the deceased's parents. Inaddition, the Trust Deed will make provision for payment to by thedeceased's parents during their lifetime.[34] That same day, Judge Fitzgerald in the Family Court issued an oral decisiongranting orders in terms of the consent memorandum. His judgment is brief and so Iset it out in full. He said:There was to have been a settlement conference today in relation to theseproceedings concerning the estate of the late Mark Payne. However, as a resultof ongoing discussions and negotiations that have been taking place betweenthe parties and their Counsel, agreements have been reached. The terms ofthose agreements are set out in a consent memorandum that has been handedto me this afternoon, together with draft orders for sealing.Present today here with me in the courtroom is Ms Sheree Payne with herlawyer, Mr Matheson; Mr and Mrs Payne who are Mark's parents with theirlawyer, Ms Manning and Mr Mori, who is Counsel for the defendants, thetrustees of the estate.Having heard from all Counsel I am satisfied that there has been a qualifyingbreach of moral duty sufficient for me to have jurisdiction to make the ordersas sought. The basis upon which I find that to exist is that the will in itsexisting terms provides for the residue of the estate to be left to a trust and theparties are discretionary beneficiaries under that existing trust. AsMr Matheson has pointed out, and this is a point accepted by other Counsel,that situation provides no definition of the share to which Sheree Payne orMr and Mrs Payne would be entitled and in that sense, given the uncertaintycreated about an entitlement to the estate, there has been a breach of moralduty. I have been referred to earlier cases in which the Court has found this tobe so.What has happened over some time now in this case, has been an attempt tofind a sensible and practical way to settle matters. The terms of settlement thatare set out in the documents provided today achieve that in the view of allinterested parties.Having considered the material provided and heard from Counsel, I amsatisfied that the terms of settlement are an intervention sufficient to create a[remedy11] and no more. It is on those grounds that I now make orders on theterms that are set out in the draft order submitted. That includes leave to applyfor further directions should that be necessary.[35] The consent orders were sealed on 12 May 2003.[36] The BNPFT was settled in accordance with those orders, on 20 June 2003. Theonly beneficiaries of the BNPFT are Sheree, her two children and Bernard and Nancy.The Trustees are Sheree and Mr John Larmer.[37] On 21 August 2003, all of the assets of the estate (including the farm andfarming operation but save for personal belongings and some cash) were transferredto Sheree and Mr Larmer as trustees of the BNPFT. The transfer of the farm from theExecutors (Neil and Stuart) to Sheree and John (as trustees of the BNPFT) wasregistered on the title.Subsequent events[38] On 5 April 2005 and 6 December 2005, the MAPFT received a partialdistribution of $30,000 and a final distribution of $11,318.49 from Mark's estate.Some of those funds were distributed to Bernard Payne for the purchase of a bed andchair.[39] Bernard died on 7 September 2007.[40] The farm ceased operation in 2008/2009 with the dairy herd (worthapproximately $200,000), farm equipment and Fonterra shares (worth approximately$226,000) sold by BNPFT and the proceeds were distributed.1211 The word used in the judgment is "breach" but this can only be a typographical error.12 It is unclear to me to whom the proceeds were distributed.[41] In 2014, a small (1 hectare) property farm was subdivided from the farm byBNPFT and sold for $290,000.[42] Following the cessation of farming operations, the farm was leased toJohn Washer for rent of $50,000 per year until it was sold in 2018.[43] On 17 March 2017 Mr Looney emailed by Mr Fitzgibbons asking what itwould cost to wind up the MAPFT. He recorded his understanding that "there are nobeneficiaries mentioned in the trust deed" and proposed that the funds held by the trustbe split equally between the Trustees (ie Mr Looney himself and Mr Maulder). Hewas told that this course was not possible.[44] By means that do not need to be set out here, in 2018 the second plaintiffs cameto learn of events some 15 years earlier, including that they fell within one of theclasses of discretionary beneficiaries under the MAPFT.[45] Messrs Looney and Maulder retired as trustees of the MAPFT on26 March 2018, and Doreen Maloney-Coles (one of the second plaintiffs) and TracyRenata were appointed in their stead. On 16 April 2018 Ms Coles and Ms Renata werereplaced as trustees by MA Payne Trustee Ltd. That company (which is the firstplaintiff in these proceedings) is owned by Mr Looney. Ms Maloney-Coles is the soledirector.[46] As at October 2018, there is almost $2 million in the BNPFT.THE PLAINTIFFS' CLAIM[47] The statement of claim was filed on 31 October 2018. It constitutes:(a) an application for judicial review against the first defendant (the FamilyCourt), second defendant (BNPFT), third defendant (Sheree) and fourthdefendants (Messrs Maulder and Trundle as Executors of Mark'sestate);1313 Nancy Payne was subsequently added as the sixth defendant in relation to the application forjudicial review.(b) a claim alleging knowing assistance against the fifth defendants(Nicholsons lawyers); and(c) a claim alleging knowing receipt against second and third defendants(BNPFT and Sheree).[48] In the application for judicial review the plaintiffs seek orders setting aside theJudge Fitzgerald's order dated 7 May 2003 on the grounds that it was order wasirregularly obtained because the Family Court did not "act judicially and consistentwith the rights and entitlements of the parties who may be affected by its decision andin accordance with the principles of natural justice". Illegality and irrationality is alsopleaded.14[49] The plaintiffs also seek a consequential declaration that the BNPFT holds itsassets on behalf of the Trust, pending the resolution of the Family Court claims bySheree Payne and Bernard and Nancy Payne.[50] The knowing assistance claim alleges that Nicholsons owed a duty of care tothe Trustees to act with reasonable care when advising them on the Family Court case.The plaintiffs say that, as part of a "dishonest and fraudulent design", Nicholsonsfailed to advise the Trustees as to how to satisfy their obligations which (it is alleged)included advising the second plaintiffs of their status as discretionary beneficiaries andensuring they were given an opportunity to be heard on the FPA claims. They seekorders requiring Nicholsons to account to the plaintiffs for the farm assets transferredfrom the Estate to the BNPFT.[51] The knowing receipt claim alleges that the BNPFT and Sheree in her personalcapacity had actual knowledge that the assets were transferred from Mark's estate tothe BNPFT "at the expense and exclusion of the second plaintiffs without theirparticipation or knowledge, as part of a dishonest and fraudulent design". Theplaintiffs seek orders requiring all assets of the BNPFT be transferred to the MAPFT,full accounting for the BNPFT since it was settled and Sheree to account to the14 The precise nature of these allegations is discussed shortly, below.MAPFT for all distributions and benefits she has received from the BNPFT since itwas settled.Mallon J's directions[52] On 18 Feb 2019, Mallon J issued a minute directing that the application forjudicial review be heard and determined first, and separately from the civil claims.She recorded her agreement with Mr Matheson's' assessment that the judicial reviewclaim was a simple one: whether the discretionary beneficiaries of the Trust shouldhave been a party in the Family Court proceedings.The defendants' position in relation to the application for review[53] Only the second and third defendants (the BNPFT and Sheree) took activesteps in response to the application for review.15 Their starting point is that there arediscrete principles that govern an application to set aside a consent order and that thisaspect of the plaintiffs' claim should be determined by reference to those principlesrather than treated as an application for judicial review strictly so-called. It is clearthat this Court may exercise supervisory power over consent orders made in the FamilyCourt.16[54] In the end, no real issue was taken with that submission by Mr Phillipps for theplaintiffs. And in my view he was right not to quibble. There can be no doubt thatsetting aside the consent orders is the object of the judicial review claim and anysuggestion that framing the application as one for judicial review could lead to adifferent (more favourable) result seems to me wrong in principle. In any event, itseems to me that the principles governing applications to set aside are sufficientlyflexible to accommodate the arguments advanced by the plaintiffs in support of theirapplication for review. I therefore proceed on the basis proposed by Mr Wright.15 The fourth defendants (the Executors) have taken no steps. The fifth defendants (Nicholsons) havefiled a statement of defence to the civil claims. They plead (inter alia) that, in substance, theknowing assistance claim is a claim in negligence, which is now time-barred. Nancy (the sixthdefendant) is now 95 years old and in a retirement home but still has capacity. She abides thedecision of the Court.16 New v New [2002] NZFLR 901 (HC) at [17].SETTING ASIDE CONSENT ORDERS: RELEVANT PRINCIPLES[55] The relevant principles governing applications to set aside were helpfullysummarised by Fisher J in New v New as follows:17[b] Although a consent Court order is not a contract, where mistake ormisrepresentation is relied upon the Courts will, in the exercise of thisjurisdiction, draw broad assistance from contractual principles by wayof analogy.[c] For cases based on unilateral mistake that will usually mean that theplaintiff will have to show that he was mistaken as to a significantfact, that the other party knew at the time that he was so mistaken, andthe result was a substantially unequal exchange of values. If the caseis based on common mistake both of the parties must have made thesame mistake and this must similarly have resulted in a substantiallyunequal exchange of values.[d] Misrepresentation will normally need to be substantial before theconsent order will be set aside.[e] Even where the plaintiff establishes contractual grounds of that naturethe Court will not normally intervene until it is shown that there wouldotherwise be a serious miscarriage of justice. Whether there is aserious miscarriage of justice is a broad question but the principalconsideration is likely to be whether there is a major disparity betweenrights under the Act and the effect of the order sufficient to overridethe desirability of finality in litigation and certainty for the parties inplanning their future lives.[f] There is ultimately an overriding discretion whether to grant reliefbearing in mind all the surrounding circumstances including the extentto which one party may have acted in reliance on the order, delay,effect on third parties, and the conduct of the parties.[56] As these principles make clear, consent orders will not be "easily disturbed".18The Court must approach an application to set aside with "considerable caution" andthe application must only be granted in "cases which clearly require the setting asideof the order".1917 At [17] referring to Phillips v Phillips [1993] 3 NZLR 159 (CA); Aplin v Lagan (1993) 10 FRNZ562 (HC); Jones v Borrin [1990] NZFLR 1 (HC) and Arthur v Arthur [1994] NZFLR 120 (HC).18 Kain v Hutton [2007] NZCA 199, [2007] 3 NZLR 349 at [230].19 Legend of Bathurst Ltd v Hobbs [2014] NZHC 2080 at [29].DISCUSSION[57] In essence, the plaintiffs say that in making the consent orders:(a) there was a breach of natural justice in relation to the first plaintiff(MAPFT) because:(i) it was the sole residuary beneficiary under Mark's will but itstrustees were not named as a party to the FPA proceedings ordirected to be served;(ii) the trustees filed no defence or evidence in relation to theclaims;(iii) the trustees were not present or represented when the consentorder was made.(b) there was a breach of natural justice in relation to the second plaintiffsbecause:(i) they were not directed to be, and were not, served with the FPAproceedings;(ii) they were not made aware of the claims or consent orderssought; and(iii) they were not present when the consent order was made(c) there were three jurisdictional problems:(i) Sheree was in a relationship of short duration and there was noevidence before the Court capable of satisfying section 4A ofthe FPA;(ii) section 3(e) of the FPA means that the claim by Bernard andNancy was precluded by Sheree's claim, unless they were beingmaintained by Mark prior to his death, as to which there was noevidence; and(iii) the Family Court failed to consider whether it was necessary totransfer the entirety of the residuary estate to the BNPFT inorder to rectify the breaches of moral duty and (so) to take intoaccount the effect of the orders on the other residuarybeneficiaries under the MAPFT.[58] I address each of the three groups of issues in turn.Breach of natural justice in relation to MAPFT[59] This allegation can readily be dealt with.[60] It is true that the MAPFT was not named as a party to the FPA proceedings andit is true that the Trust had an interest in them. But the factual narrative I have set outearlier shows that the Trustees were well aware of the proceedings, and of the proposalto settle them. Moreover, they filed a notice of appearance and (through their counsel)signed the consent memorandum on which the orders were based. That same lawyerwas present in Court when Judge Fitzgerald made the orders. In my view they werenot only afforded but (to the limited extent they wished) took, the opportunity to beheard.[61] Any issues about whether:(a) their actions were somehow in breach of their trustee duties;(b) they were appropriately advised; or(c) there was some conflict of interest involved in the Trustees and theEstate being represented by the same lawyer;are properly directed against the original trustees or the lawyer concerned and are wellbeyond the scope of the application to set aside (or the judicial review application).20Breach of natural justice in relation to the second plaintiffs[62] Again, there is no dispute that no attempt was made to identify persons (otherthan Nancy and Bernard) falling within the "relatives" class of discretionarybeneficiary under the MAPFT Deed or, accordingly, that the second plaintiffs did notknow either of their status or the existence of the FPA proceedings until 2018. Butthat does not automatically establish a breach of natural justice. Rather, it is necessaryto inquire whether the principles of natural justice required them to be served with theFPA proceedings. Such service would have had the effect of notifying them of theirstatus as discretionary beneficiaries under the MAPFT and enabled them to takewhatever step in the proceedings they wished.[63] There are two aspects to the requirements of natural justice here. The first iswhether there was compliance with whatever statutory rules as to service applied.Those rules are, of course, a legislative embodiment of natural justice rights. Thesecond involves a more general inquiry as to the nature of the second plaintiffs' interestin both the MAPFT and in the proceedings and so, in their interest in being heard.That is because I accept it is possible that, notwithstanding compliance with statutoryservice requirements, there was nonetheless an obligation to notify the secondplaintiffs in order that they could (if they wanted) take steps to protect those interests.The statutory service requirements[64] The relevant enactments are the FPA and any applicable Family Court Rules2002 (FCR).2120 Lest it be thought that I consider that there are obvious grounds for such further action, I recordmy view that the Trustees' agreement to the settlement can fairly be seen as broadly consistentwith Marks' draft memorandum of wishes.21 The Family Court Rules 2002 came into effect on 21 October 2002 just a few days before Sheree'sFamily Protection Act 1955 (FPA) proceedings were issued.[65] Section 4(3) of the FPA provides that it shall not be necessary to serve or makeprovision for the representation of any person by reason only of the person beingentitled to apply under the Act unless the person is the spouse, or child of the deceasedor the court considers there are special circumstances which render it desirable thatthe person be served or represented.[66] The second plaintiffs were not entitled to apply under the Act. The issue of"special circumstances" does not therefore arise.[67] Rule 18 of the FCR provides that the general rules as to service of applicationsmade in Family Court proceedings contained in pt 2 of the Rules are modified by anyrules in pt 5 that apply to the proceedings. Part 5 relates to proceedings under (interalia) the FPA, and service and related matters in proceedings under that Act arespecifically dealt with in rr 379–382. Rule 37 also makes it clear that the specificservice rules in pt 5 prevail over the general rules.[68] Rule 379 makes it clear that the only respondent to be named in an applicationmade under either Act is the personal representative of the person against whose estatethe claim is brought.[69] Most relevantly, however, at the time material to these proceedings r 380provided that:(a) s 4(3) of the FPA "affects" who must be served with a copy of anapplication under that Act;(b) an applicant to proceedings under the FPA must file an interlocutoryapplication without notice for directions as to service if— 22(i) that is required by law; or(ii) the applicant is in doubt as to the person on whom theapplication must be served; or22 And, if required an interlocutory application without notice for orders for representation (wherean order is sought that a person represent a person, or class or persons, who should be served).(iii) the Court directs the applicant to do so.[70] Rule 380(3) provided that such an application must specify the directionssought and be accompanied by a memorandum signed by the applicant's lawyerexplaining why the directions are considered appropriate and be supported by theinformation specified in r 381 which, in turn stipulated (and still does so) that theapplicant must provide information to the Court in support of the application, byaffidavit or some other means, that will enable it to decide—(a) which persons or classes of persons are interested in the applicant'sclaim;(b) which persons or classes of persons may be adversely affected by theapplicant's claim; and(c) by what means the interests of each person or class of persons referredto in paragraph (a) or paragraph (b) may be adequately represented.[71] Those requirements are limited and made more specific, however in subcl (2),which states that the information to be provided under subcl (1) is—(a) the date of the death of the deceased and the date of grant of probate orletters of administration;(b) whether the deceased died testate or intestate and, if testate, a copy ofhis or her last will with any codicils;(c) the value of the estate, so far as it is known to the applicant;(d) the names, addresses, occupations, and ages of the beneficiaries underthe will or persons entitled on the intestacy, as the case requires;(e) the names, addresses, occupations, and ages of the persons of each classentitled to claim under that Act; and(f) any other relevant information.[72] As already noted, in the present case the second plaintiffs were not required tobe served under the FPA. Moreover, Sheree's lawyer, Mr Matheson, did file anapplication for directions and the required memorandum. Directions as to servicewere sought as to service on Bernard and Nancy who were (other than Sheree'schildren) the only other people with a claim under the FPA. Sheree filed an affidavitin support.[73] While I acknowledge that the second plaintiffs now say that they are personswho were interested in Sheree's claim and were adversely affected by it (in terms ofr 381(1)) I do not consider that there was any failure to provide the requisiteinformation to the Court (in terms of r 381(2)). More particularly, the second plaintiffswere not beneficiaries under Mark's will and were not (as I have said) entitled to claimunder the FPA. Sheree provided the Court with a copy of the will and of the MAPFTDeed (which refers to the class of discretionary beneficiary to which the secondplaintiffs belong). And the memorandum identified the MAPFT as the party entitledto the entire residue of the estate and that the Trust involved uncertainty as to whatSheree and other potential beneficiaries might receive.23 The Court had before it allthe information it needed to make decisions about service.[74] I am therefore satisfied there was no breach of natural justice as a result ofnon-compliance with the statutory service requirements.More general requirements[75] As should by now very clear, the second plaintiffs are discretionarybeneficiaries by virtue only of the fact that they form part of a very wide and arguablyinchoate class of persons described in the MAPFT Trust Deed. Indeed,Ms Mahoney-Coles has named five further person she says would qualify as membersof the class. There may well be more.23 Which uncertainty was the basis for her application under the FPA.[76] That said, however, the law seems clear that a trust containing a class of objectswhich is so widely defined is not void for uncertainty, provided it can clearly bedetermined, on a case by case basis, whether a particular individual falls within thatclass. Equally, however, it seems there is no obligation on the trustees to take activesteps to identify all persons falling within such a class (either at the time of settlementof subsequently). As Templeman J (as he then was) said in in Re Manisty'sSettlement:24The Court cannot insist on any particular consideration being given by thetrustees to the exercise of the power. If a settlor creates a power exercisablein favour of his relations the trustees may for many years hold regularmeetings, study the terms of the power and the other provisions of thesettlement, examine the accounts and either decide not to exercise the poweror to exercise it only in favour, for example, of the children of the settlor.In my judgment it cannot be said that the trustees in those circumstances havecommitted a breach of trust and that they ought to have advertised the poweror looked beyond the persons who are most likely to be the objects of thebounty of the settlor. The trustees are, of course, at liberty to make furtherinquiries but cannot be compelled to do so at the behest of any beneficiary.The court cannot judge the adequacy of the consideration given by the trusteesto the exercise of the power, and cannot insist on the trustees applying aparticular principle or any principle in reaching a decision.If a person within the ambit of the power is aware of its existence he canrequire the trustees to consider exercising the power and in particular toconsider a request on his part for the power to be exercised in his favour. Thetrustees must consider this request, and if they decline to do so or can beproved to have omitted to do so, then the aggrieved person may apply to thecourt which may remove the trustees and appoint others in their place. This,as I understand it, is the only right and only remedy of any object of the power.[77] And so, as noted by the authors of Lewin on Trusts:25 [t]here is no requirement to disclose the existence of a settlement to allobjects of fiduciary powers in all circumstances, whether by directcommunication, advertisement or otherwise. We consider that what thetrustees need to do is identify those discretionary beneficiaries who are, in thecircumstances, real potential candidates for benefit in the proper exercise ofthe discretion under the trust or power; and disclosure may, indeed normallyshould, be limited to those discretionary beneficiaries.24 In re Manisty's Settlement [1974] Ch 17 at 25 (citations omitted).25 Lyton Tucker, Nicholas Le Poidevin and James Brightwell Lewin on Trusts (19th ed, Sweet &Maxwell, 2018) at 23-009. See also the discussion in Erceg v Erceg [2017] NZSC 28, [2017] 1NZLR 320 at [58] – [62].[78] The plaintiffs accept that the trustees' duty to identify does not extend so far asto require identification of all beneficiaries within a wide class. They say that the dutyis "to identify sufficient beneficiaries to ensure the due and proper administration of atrust". That is right, but it begs the question. And here, I am not persuaded that anyfailure to inquire and identify the existence of the second plaintiffs did mean that therecould be no due and proper administration of the trust. Rather, it seems to me that theTrustees' knowledge of the existence of Bernard and Nancy, and what can be assumedwas their knowledge that Mark had no siblings would suffice for that purpose,particularly in light of his draft memorandum of wishes. I do not consider their dutywent further. There is nothing in Palmer J's very recent decision in Enright v Enrightthat suggests a different approach or conclusion.26[79] And if the Trustees were not obliged to take steps to identify all persons fallingwithin the "relatives" class of discretionary beneficiary, it is difficult to see howanyone else could be so obliged. And unless and until they had been identified, itwould be impossible to afford them any natural justice rights.[80] Even if I am wrong in that, the nature of the second plaintiffs' beneficialinterest is not such as to give them natural justice rights of the sort asserted here.[81] First, s 49 of the District Courts Act 1947 provided (at the time material tothese proceedings) that "any trustee ... may sue and be sued ... as if he were a party inhis own right, without joining any of the parties beneficially interested in the trust orestate and shall be considered as representing such parties ". While the court couldnonetheless order that any beneficiaries should be joined at any stage, the starting pointis that notice to/service on the Trustees' will suffice to ensure that the interests of thebeneficiaries will or can be represented.26 Enright v Enright [2019] NZHC 1124 at [196]-[198].[82] Secondly, the question of whether special circumstances existed that wouldwarrant separate service on the second plaintiffs is confounded by the fundamentalpoint made earlier.27 The second plaintiffs had not been (and were not required to be)identified as discretionary beneficiaries at the relevant time and so the relevantassessment could not be made.[83] Thirdly, even if the issue could be addressed in hindsight, the reality is thatunder the MAPFT Deed the second plaintiffs were only (relatively remote)discretionary beneficiaries. Discretionary beneficiaries can have no more than a hopethat the Trustees' discretion will be exercised in their favour. It is trite that they haveno interest in the trust property or trust fund by reason simply of being so-named.Unless and until the Trustees' discretion is exercised there is no interest vested orcontingent, merely an expectation. And I am unable to agree with Mr Phillipps thattheir de facto status as "final" beneficiaries makes a difference in that regard; even onvesting day it was up to the Trustees to decide whether they would receive any part ofthe trust fund.[84] It is because discretionary beneficiaries have no interest in the trust that theirconsent to a resettlement is not required. Trustees have no obligation to consult suchbeneficiaries before excluding them or to notify them that they have been excluded asbeneficiaries. As noted earlier, a trustee is not, in general, obliged to volunteerdocuments or information to discretionary beneficiaries. Nor do they have to providea beneficiary with information relating to the reasons for excluding them.[85] Accordingly, in my view the second plaintiffs' interest in the MAPFT was,without more, an insufficient basis for the natural justice rights asserted. I considerthat they could have no reasonable expectation that they would be served or heard onthe FPA claims.27 The relevant special circumstances will usually involve an identified failure by the trustee toperform a duty owed by the trustee to the beneficiary to protect the trust estate or to protect theinterests of the beneficiary in the trust estate.The jurisdictional issues[86] As noted earlier, there are three jurisdictional issues raised by the plaintiffs. Toreiterate, they are whether the Family Court:(a) had proper grounds for concluding that Sheree was capable ofsatisfying section 4A of the FPA;(b) had proper grounds for concluding that Bernard and Nancy were notprecluded from claiming by s 3(e) of the FPA; and(c) failed to consider whether it was necessary to transfer the entirety ofthe residuary estate to the BNPFT in order to rectify the breaches ofmoral duty.[87] Before turning to consider these issues, I record that there is no dispute that theFamily Court had a duty to act independently to assure itself of the merits of the orderssought.28 That said, however, as Fisher J noted in New that duty extends only so far.And so, he said:29[42] In a case where there has already been an exchange of full affidavits,experienced counsel, a joint memorandum appearing to justify the settlementon its face, discussion at a judicial conference and no obvious warning signalsto the Judge, it would be a counsel of perfection to expect the Court to gofurther.[88] And in Re Julso the Court held that the consent of the parties could not oustthe discretion given to the Court by s 4(1) of the FPA to make such provision as theCourt thinks fit.30 The Court retains, and must exercise judicially, the discretion toapprove or not approve the order sought.[89] Similarly, consent orders cannot confer jurisdiction on the Court where thereis none.28 New v New, above n 16, at [41] citing Jones v Borrin, above n 17; Dinch v Dinch [1987] 1 WLR252, [1987] 1 All ER 818 (HL) at 819 and W v W [2005] NZFLR 1122 (HC).29 At [42].30 Re Julso (deceased) [1975] 2 NZLR 536 (SC) at 539.The factual basis for the orders made in favour of Sheree, Bernard and Nancy[90] It is convenient to consider the contentions summarised at [86(a)] and [84(b)]above together. They are related.[91] The starting point is s 3 of the FPA which specifies those persons who areentitled to make a claim under the Act. These relevantly include both a de facto partnerwho was living in a de facto relationship with the deceased at the date of his or herdeath and also the parents of the deceased.[92] But because Sheree's de facto relationship with Mark was short lived, s 4Agoverns her ability to claim. The effect of that provision is that the Family Court couldnot make an order in Sheree's favour unless it was satisfied that:(a) there was a child of the de facto relationship; and(b) failure to make the order would result in serious injustice to Sheree.[93] The term "child of the relationship" is defined by reference to s 2 of theProperty (Relationships) Act 1976, which provides that it:(a) means any child of both de facto partners; and(b) includes any other child (whether or not a child of either de factopartner) who was a member of the family of the de facto partners—(i) at the time when they ceased to live together; or(ii) at the time immediately before an application under this Act,if at that time they had not ceased to live together; or(iii) at the date of the death of one of the de facto partners[94] Sheree's claim could only therefore succeed if her children could properly beregarded as members of her and Mark's family at the time of his death (and failure tomake the order would result in serious injustice to her).[95] As far as Bernard and Nancy were concerned, the effect of s 3(e) of the FPA isthat they were unable to make a claim unless:(a) they were being maintained (wholly or partly or were legally entitledto be maintained wholly or partly) by Mark at the date of his death; or(b) at the date of the claim there was no living de facto in favour of whomthe court could make an order and no child of a de facto relationship ofthe deceased.[96] Accordingly:(a) if Sheree did not have a claim then Bernard and Nancy wereundoubtedly entitled to make a claim the purposes of s 3; but(b) if Sheree did have a claim then Bernard and Nancy could only bring aclaim if they were being maintained.[97] In light of the orders made, it is the latter position which must be assumed.[98] The plaintiffs say that there was no evidential basis on which the Family Courtcould make the requisite factual findings either in relation to Sheree or in relation toBernard and Nancy. More specifically, they say that there was no evidence:(a) about whether there were any children of the de facto relationship; or(b) about whether the failure to make the order would result in seriousinjustice to Sheree; or(c) about whether Bernard and Nancy were maintained by Mark.[99] In the circumstances of this case (by which I mean that Sheree's applicationwas, in light of the settlement proposal, unopposed) I consider that Sheree's affidavit(summarised above) did provide an adequate basis for concluding both that her sonswere children of the relationship and that she would suffer injustice if orders were notmade. It is not (as I understand it) disputed that her sons lived with her and Mark andthere was no evidence to contradict her account of their relationship with Mark. As toinjustice, Sheree's affidavit makes clear that she was living on in the farm house onMark's property with her two children and facing much uncertainty following hisdeath. Her primary source of income came from working on the farm property and shewas suddenly required to manage outgoings of which Mark had previously been takingcare of (including meeting mortgage payments on her previous house and paymentson her car).[100] The position in relation to Bernard and Nancy is slightly less clear-cut. Neitherfiled affidavits, and so there was no evidential basis for concluding that they hadpreviously been maintained by Mark. That would undoubtedly be problematic if thematter were one (for example) of formal proof.[101] In the end, however, I agree with Mr Wright that by consenting to the ordersSheree, Mark's Executors and the Trustees of the MAPFT were essentially acceptingthe existence of the necessary factual foundation for them. It is clear from thepreceding correspondence that there was some factual basis put forward for themaintenance claim and, while I tend to agree with Mr Phillipps that payments by Markof a pre-existing mortgage debt could not in law constitute "maintenance", it must beassumed that the lawyers at the time concluded otherwise.[102] From the Court's perspective, all parties were legally represented and it wouldhave been clear from the material filed that there had been negotiations over somemonths; this was not a case where there was any obvious risk of an agreement reachedunder duress (and it was not). Accordingly, I consider that the Judge was entitled toproceed on the basis that consent would not have been given if the necessaryjurisdictional facts did not exist. And the reality is that the same outcome could havebeen achieved in other ways. For example, the estate could have been transferred tothe MAPFT and the Trustees could have consented to, and implemented, anarrangement very similar to the one that was agreed without the need for the FPAthresholds to be met.[103] In any event, I consider that the Court's duty to assure itself of the merits ofthe orders sought was, in my view, more limited than in some other cases, for thereasons given by Fisher J in New. I find no jurisdictional error here.Supervisory Jurisdiction, Creation of a New Trust & Irrationality[104] As I understand this aspect of the plaintiffs' case, it is principally that, ineffectively making orders transferring all of Mark's residuary estate to the BNPFT, theCourt went further than was permissible. Reliance is placed on the decision in Littlev Angus where the Court of Appeal held that the discretion in s 4 of the FPA to orderany provision the Court thinks fit for those entitled to an order should only be exercisedto the extent necessary to remedy the relevant breach of moral duty, judged by thestandards of a wise and just testator.31 I have set out Judge Fitzgerald's decision above,in full. On its face it suggests that the Judge was satisfied that there had been aqualifying breach of moral duty and that the consent orders were an appropriateintervention to remedy the breach "and no more". On its face, therefore, the decisioncomplies with the dicta in Angus. I can see no reason to go behind it.[105] Nor am I able to see any basis for the further contention that it was irrationalto order the property be transferred to a trust that did not yet exist.Conclusion: no vitiating error[106] As will be evident form the foregoing discussion, I do not consider that theconsent orders can be impugned either for breach of natural justice or on jurisdictionalgrounds. Strictly speaking, that view suffices to dispose of the plaintiffs' application.[107] Out of an abundance of caution, however, I propose also to consider whether(if there has been a vitiating error) the interests of justice would favour setting asidethe consent orders. As it happens, my conclusion on that issue merely serves to fortifymy earlier conclusions.Interests of justice[108] As noted earlier, Fisher J in New noted that the threshold for setting aside, evenin the face of a clear error or mistake is a high one. He said that the Court needs to besatisfied that a serious miscarriage of justice would arise were the orders not set aside.To reiterate, the principal consideration is likely to be whether there is a significant31 Little v Angus [1981] 1 NZLR 126 (CA) at 127.disjunct between the applicants' rights under the FPA and the effect of the consentorder. The disjunct must be sufficient to override the desirability of finality inlitigation and certainty for the parties in planning their future lives.[109] The starting point is, again, that the second plaintiffs had no rights under theFPA. By and of itself that tilts the scales towards letting the orders be. But I amprepared proceed on the assumption that (contrary to my conclusions above) theplaintiffs should nonetheless have been heard on the FPA applications and might havebeen able to persuade the Family Court to make orders that protected their expectancyby requiring that some or all of the residue of Mark's estate be transferred to theMAPFT. But even if that had occurred, however, the second plaintiffs' interest in thetrust fund would have remained an expectancy only. They would have had noentitlement to a distribution. The scales remain tipped in favour of the ordersremaining extant.[110] And even putting all of that to one side, the fundamental and, in my view,inevitably fatal point is that 16 years have now passed since the orders were made.Mark's estate has long since been finally distributed. It is for sound policy reasonsthat s 9 of the FPA and other materially identical statutory provisions32 impose stricttime limits on the making of applications which seek to alter testamentarydispositions.33 Without exception, final distribution is a line in the sand which cannotbe crossed. The Court of Appeal has confirmed that even in a case of fraudulentconcealment time limits under those Acts cannot be extended where the estate has beenfinally distributed.3432 Such as s 90 of the Property (Relationships) Act 1976.33 Section 9 of the FPA prevents a court from hearing an application under that Act unless it wasmade within 12 months from the date of the grant in New Zealand of administration of thedeceased estate. While the first proviso to s 9 empowers the Court to extend the period forapplying under the Act even after it has expired that proviso is itself qualified and no suchextension is to be granted unless the application for extension is made before final distribution ofthe estate. Moreover, s 9 further stipulates that no distribution of any part of the estate made beforethe administrator (a term which includes an executor) receives notice of the application forextension is to be disturbed.34 Re Stewart [2004] 1 NZLR 354, [2004] NZFLR 329 (CA). The executors and the beneficiariesconcealed from the claimants – two adult sons of the deceased – that their mother had died, andthereby thwarted their ability to make a claim under the Act.[111] There can be no doubt that Sheree and her sons and Bernard and Nancy haveall relied on the orders in conducting their affairs and living their lives since 2003.There is, by now, only a remote relationship between the corpus of the BNPFT andMark's residuary estate. Any tracing exercise (if that, indeed, is one of the plaintiffs'ultimate objects) would undoubtedly be complex.[112] Although Ms Ammundsen for the plaintiffs submitted that setting the consentorders aside would have the effect of "undistributing" the estate and revivifying thetwo FPA applications, that seems to me to ignore the reality just mentioned. In anyevent, the very limited nature of any rights originally held by the plaintiffs in relationto the FPA claims and the remote nature of any interest held by them in whatever assetsand funds are now held by the BNPFT, does not warrant requiring the Court or thedefendants to grapple with the undoubtedly complicated consequences of the outcomesought.Conclusions[113] By way of summary:(a) The application for judicial review is more appropriately regarded asan application to set aside the consent orders made by Judge Fitzgeraldin 2003.(b) No grounds for setting aside the consent orders have been established.More particularly:(i) there was no breach of natural justice vis a vis the MAPFT whenthe orders were made;(ii) there was no breach of natural justice vis a vis the secondplaintiffs when the orders were made; and(iii) there was sufficient material before the Family Court to enableit to make the orders it did.(c) Even if grounds for setting aside did exist, the effluxion of time(in particular) means that the interests of justice would militate againstthe Court doing so.[114] The application is dismissed accordingly.[115] 2B costs should follow the event in the usual way. If they cannot be agreedmemoranda may be filed.__________________________Rebecca Ellis J