LUSTY and BROWNE as executors of the Estate of Kenneth Richard Lusty v C M THORBURN and C E THORBURN as trustees of the THORBURN TRUST [2019] NZHC 2610

LUSTY and BROWNE as executors of the Estate of Kenneth Richard Lusty v C M THORBURN and C E THORBURN as trustees of the THORBURN TRUST [2019] NZHC 2610

The plaintiffs' summary judgment application was dismissed because it is arguable the lease was granted in breach of the trustee's duties by a grossly inadequate and capped rent that could operate in perpetuity, the adequacy of consideration paid is not established, and there are significant factual issues (including knowledge and dealings between the parties and solicitors' involvement) requiring trial rather than summary disposal.

Citation
[2019] NZHC 2610
Parties
Plaintiff Executor of the Estate of Kenneth Richard Lusty: Aileen Beryl Lusty; Plaintiff Executor of the Estate of Kenneth Richard Lusty: Ronald Hunt Lusty; Plaintiff Executor of the Estate of Kenneth Richard Lusty: Warwick James Roland Browne; Defendant Trustee of the Thorburn Trust: Craig Maxwell Thorburn; Defendant Trustee of the Thorburn Trust: Carly Eve Thorburn
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 October 2019
Procedural Posture
Specific Performance and Declaratory Relief Concerning Lease Renewal Under Contract and Commercial Law Act 2017 and Declaratory Judgments Act 1908 / Summary Judgment Application
Outcome
Plaintiffs' application for summary judgment dismissed.
Legal Topics
Specific Performance, Breach of Trust, Lease Renewal (perpetuity), Glasgow Lease, Knowing Receipt, Trust Instrument Interpretation
Trusts Equity Property Law Contract Charities Law Specific Performance Breach of Trust Lease Renewal (perpetuity) +3 more

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Parties

Aileen Beryl Lusty

Plaintiff Executor of the Estate of Kenneth Richard Lusty

Ronald Hunt Lusty

Plaintiff Executor of the Estate of Kenneth Richard Lusty

Warwick James Roland Browne

Plaintiff Executor of the Estate of Kenneth Richard Lusty

Craig Maxwell Thorburn

Defendant Trustee of the Thorburn Trust

Carly Eve Thorburn

Defendant Trustee of the Thorburn Trust

Procedural Posture

Specific Performance and Declaratory Relief Concerning Lease Renewal Under Contract and Commercial Law Act 2017 and Declaratory Judgments Act 1908 / Summary Judgment Application

Legal Issues

  1. 1 Whether plaintiffs are entitled to specific performance enforcing perpetual lease renewals
  2. 2 Whether the original lease was procured in breach of the trustee's duties and thus unenforceable or incapable of equitable enforcement
  3. 3 Whether plaintiffs were in breach of the lease at renewal and whether that precludes relief

Ratio Decidendi

The plaintiffs' summary judgment application was dismissed because it is arguable the lease was granted in breach of the trustee's duties by a grossly inadequate and capped rent that could operate in perpetuity, the adequacy of consideration paid is not established, and there are significant factual issues (including knowledge and dealings between the parties and solicitors' involvement) requiring trial rather than summary disposal.

Court Disposition

Plaintiffs' application for summary judgment dismissed.

Orders

  • Costs reserved; parties may file memoranda on costs within 14 days with 7 days for any reply
  • Registrar to allocate a first case management telephone conference on the first available date