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Petersen v Clark [2021] NZFC 4070

Published 27 January 2023

Application for orders — relationship property — whether trustees can sue themselves — whether trustees should be parties to proceedings — jurisdiction of Family Court — discovery — Trusts Act 2019, s 141 — Property (Relationships) Act 1976, ss 4, 33, 37, 44, 44B & 44C — Evidence Act 2006, s 9 — Trustee Act 1956, s 33A — Family Court Rules 2002, RR 133, 141 & 142 — Martin v Martin (No 1) (1982) 4 MPC 87 — Johansen v Johansen (1993) 10 FRNZ 578 — Staheli v Staheli [2017] NZFC 5287 — Thomas v Brougham (1981) 4 MPC 200 — Clayton v Clayton [2015] NZCA 30 — Dixon v Kingsley [2015] NZHC 2044 — Biggs v Biggs (and others) [2018] NZCA 546 — Blackley v Blackley [2018] NZHC 2011. The parties' relationship had broken down, and the applicant sought orders under the Property (Relationships) Act (PRA). She named the trustees of a trust as second respondents. There were three main issues for the Court. Firstly, the applicant sought discovery of various documents that were held by both the first and second respondents and related to several companies and trusts that the parties had interests in. The first respondent opposed the application on the grounds that it was unduly onerous, that he had already made significant efforts to make information available to the applicant, and that the applicant had no interests in one of the companies in question. The Court ordered disclosure of specific information relating to one of the companies, but largely agreed with the first respondent that most of the requests were too onerous and out of proportion to what was involved in the proceedings. The next issue was whether the second respondents should be removed as parties. The applicant argued that trustees could be joined as parties because the PRA provides for remedies to be made against trusts. The Court found that the legislation did not allow the applicant to insist on naming the trustees as parties. It was up to the trustees themselves to choose to be parties. As the trustees had not made this choice, the Court ordered them to be struck out as respondents. However the Court added that the applicant had the option of giving notice to the other trustees, thus giving them the chance to appear and be heard. The final question for the Court was whether directions were required in relation to the applicant suing herself as a trustee. Given that the Court's ruling removing the trustees as parties, no decision on this issue was required. Judgment Date: 6 May 2021