TOZER & ORS v BRYCE TOZER [2014] NZHC 1759

TOZER & ORS v BRYCE TOZER [2014] NZHC 1759

On the evidence the trustees breached core trustee duties (preservation of trust property, impartiality, prudence) in permitting trust funds to benefit the first defendant and in failing to enforce indemnities; there was no evidence to excuse liability under s 73 Trustee Act 1956; equitable compensation of $200,000 is necessary to restore beneficiaries and judgment is entered against each trustee with full individual liability.

Citation
[2014] NZHC 1759
Parties
Plaintiff: Brett Gregory Tozer; Plaintiff: Craigkeith Tozer; Plaintiff: Lyn Beverley Ferguson; First Defendant: Bryce Robert Tozer; Second Defendant: Ian Hendrick Bode
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 July 2014
Procedural Posture
Breach of Trust (civil) / Judgment on Formal Proof (hcr 15.9)
Outcome
Judgment for plaintiffs against both trustees for equitable compensation; each trustee held fully individually liable.
Legal Topics
Breach of Trust, Trustee Duties, Duty of Impartiality Between Beneficiaries, Duty of Prudence and Diligence, Compensation and Accounting, Dishonest Assistance (alleged)
Trusts Equity Fiduciary Law Civil Procedure Breach of Trust Trustee Duties Duty of Impartiality Between Beneficiaries Duty of Prudence and Diligence +2 more

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Parties

Brett Gregory Tozer

Plaintiff

Craigkeith Tozer

Plaintiff

Lyn Beverley Ferguson

Plaintiff

Bryce Robert Tozer

First Defendant

Ian Hendrick Bode

Second Defendant

Procedural Posture

Breach of Trust (civil) / Judgment on Formal Proof (hcr 15.9)

Legal Issues

  1. 1 Whether trustees breached duties to preserve trust property
  2. 2 Whether trustees acted impartially between beneficiaries
  3. 3 Whether trustees failed to act with due diligence and prudence

Ratio Decidendi

On the evidence the trustees breached core trustee duties (preservation of trust property, impartiality, prudence) in permitting trust funds to benefit the first defendant and in failing to enforce indemnities; there was no evidence to excuse liability under s 73 Trustee Act 1956; equitable compensation of $200,000 is necessary to restore beneficiaries and judgment is entered against each trustee with full individual liability.

Court Disposition

Judgment for plaintiffs against both trustees for equitable compensation; each trustee held fully individually liable.

Orders

  • Judgment against each trustee for $200,000 in favour of the plaintiffs
  • Each trustee is fully individually liable for the judgment (joint and several liability)