Middelberg v Middelberg

[2023] NZHC 3771

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-676

[2023] NZHC 3771

UNDER

the Trusts Act 2019

BETWEEN

CAROLYN GLENYS MIDDELBERG, GARETT ADRIAN ARNOLD MIDDELBERG and BRETT WALTER

MIDDELBERG as former or current beneficiaries of the MIDDELBERG FAMILY TRUST

Applicants

AND

ERINA FRANCES MIDDELBERG, JASON MARK MIDDELBERG and

ARENT PHILIP MIDDELBERG as trustees of the MIDDELBERG FAMILY TRUST

Respondents

Hearing:	On the papers
Counsel:	B N Snedden for Applicants
Judgment:	19 December 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 19 December 2023 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

MIDDELBERG v MIDDELBERG [2023] NZHC 3771 [19 December 2023]

[1]    The applicants apply for leave to commence a proceeding by way of originating application under pt 19 of the High Court Rules 2016. They intend to bring a proceeding for orders that information requested of the respondents as trustees of the Middelberg Family Trust be disclosed to them in reliance upon ss 49, 51 and 52 of the Trusts Act 2019.

[2]    The applicants are the adult children of the marriage between Arent Walter Middelberg (Walter) and Glenys Middelberg. Walter and Glenys were divorced in 1977. Walter went on to marry Erina Middelberg and have two children with her. Walter died on 20 March 2022.

[3]    The applicants understand that in 2006 Walter settled the Middelberg Family Trust of which they were beneficiaries, but that at some stage they were removed as beneficiaries of the trust. As I have noted above, the respondents are the present trustees of the Middelberg Family Trust. The applicants have requested information from the respondents relevant to their removal as beneficiaries, but the information has not been provided.

[4]    The intended proceeding cannot be commenced as of right by way of originating application under pt 19. The applicants therefore apply under r 19.5 of the High Court Rules for leave to proceed under pt 19. Rule 19.5 provides that the Court may, in the interests of justice, permit a proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application under pt 19. The interests of justice means that the Court must secure the just, speedy and expedient determination of a proceeding. The Court’s permission may be sought without notice.1

[5]    The principles upon which the Court acts in granting leave under r 19.5 are well established.2 I am satisfied it is appropriate to grant the applicants leave to proceed under pt 19. The considerations that are relevant here are the same as in Toogood v Fairfield Trustees Ltd where I granted a similar application.3 Relevantly, I am satisfied the disclosure is not wide-ranging, the applicants rely primarily on the

1      High Court Rules 2016, r 19.5(2).

2      See for instance Solar Bright Ltd v Martin [2019] NZHC 300 and Hong Kong & Shanghai Banking Corp Ltd v Erceg (2010) 20 PRNZ 652.

3      Toogood v Fairfield Trustees Ltd [2021] NZHC 2568.

statutory provisions of the Trusts Act, there will be no need for particularised pleadings, and I cannot imagine there would be significant interlocutory applications or close case management required. In my view the proceeding can be determined most promptly, inexpensively and efficiently under pt 19.

Result

[6]    The applicants are granted leave to commence the proceeding by way of the originating application procedure in pt 19 of the High Court Rules.

[7]There shall be a telephone case management conference before me at

10.30 am on 14 February 2024 in the expectation that service will have been effected by then. I direct that counsel shall file a memorandum setting out proposed directions to take the case to hearing at least two working days prior to the telephone conference.

[8]Costs are reserved.

O G Paulsen Associate Judge

Solicitors:
Snedden Law Ltd, Auckland