Trust beneficiaries treated equally by Maryanne Green, Court of Appeal told

Tuesday 26th July 2016

Lawyers for Maryanne Green, the daughter of late NBR rich lister Hugh Green, told the Court of Appeal today that her status as trustee of Green's $400 million business empire did not hamper the operation of the trust and every beneficiary had been treated equally while Maryanne has been a trustee.

Two of Maryanne's siblings, Frances and John Green, have asked the appeal court to overthrow the High Court's ruling last year which removed them as trustees of one of the trusts that control the business empire and reinstated Maryanne, after Justice Helen Winkelmann ruled a new will that Green made just months before he died in July 2012 should be overturned.

Vanessa Bruton QC, Maryanne's lawyer, today told the court that there was no evidence that "friction" between the siblings had hampered the trust's operation with Maryanne as a trustee. Bruton said Maryanne had made numerous attempts to settle the case before it came to court, and had agreed to restrict her own voting so that if the other two trustees, who are independent, disagree, she does not have a deciding vote.

"[The appellants] don't suggest Maryanne isn't fit to be a trustee - Maryanne is continuing to act in good faith," Bruton said. "Her consent [to restrict her vote as a trustee] was on the basis of this appeal being promptly heard and determined."

Bruton said the appellant's representation of the evidence had been "highly selective" and cherrypicked, particularly regarding John Green. There are long-running tensions between Maryanne and John Green, mainly stemming from his departure from the company and resignation as a trustee in 1994.

In the High Court ruling, Justice Winkelmann concluded John had been involved in dishonest transactions in the early 1990s when he was working at Kilmacrennan Livestock, the entity through which Hugh Green conducted his cattle trading business. Maryanne was reluctant to work with John because she believed him to be dishonest and thought he had poor business skills, she told the High Court.

"John's return would be wholly inappropriate. He was removed for serious misconduct and found to be dishonest" both in his conduct in 1994 and in the evidence he gave in the High Court, Bruton said.

Justice Stephen Kos, president of the Court of Appeal, said he had a sense Frances may be better placed to be a trustee, though Stephen Hunter, the lawyer representing Maryanne's daughter Alice Piper, said Justice Winkelmann had still made some "reasonably serious criticisms" of Frances in her judgement, including that Frances had failed to provide for Alice while she was a trustee.

Earlier in the day, John's QC James Farmer said that the only real solution was to put John and Frances back as trustees, or at least one of them. The two siblings have taken separate proceedings to remove Maryanne as a trustee, which has been a cause of consternation for the appeal court judges who are concerned the litigation will drag on.

"It's not politics, it's not a question of having a voice or having representatives," Justice Kos said. "It's a question of having competent trustees who are bearing in mind the interest of all beneficiaries."

Frances and John are also pursuing a ruling which would see adopted children and grandchildren of Hugh Green and his wife Moira disqualified as beneficiaries of the trust, which Justice Rhys Harrison said must be hurtful to those family members.

Maryanne's daughter, Alice Piper, is adopted, as is Gerard Green, Hugh and Moira's son. Such a ruling would also disqualify Gerard's children as beneficiaries, leaving the trust to benefit John's four children and Frances's two children.

Justice Kos questioned how the appellants could argue that they were trying to uphold Hugh Green's wishes, which was the theme of their opening arguments, while also trying to remove people who Hugh Green had wanted to be beneficiaries.

"In this case, Hugh Green's wishes appear to be quite clear," Justice Kos said. "The contradiction appears to me to be for tactical advantage. There is a profound inconsistency."

Farmer said he could "go away and bang some heads together" over the issue.

The trial was set down for four days, but finished this afternoon. The judges reserved their decision.

BusinessDesk.co.nz

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