Schutte and Others v Schutte (SA 27 of 2019) [2021] NASC 18 (13 April 2021)

Schutte and Others v Schutte (SA 27 of 2019) [2021] NASC 18 (13 April 2021)

Clause 4.4.6 of the trust deed is a special, unambiguous provision that allows the majority of trustees to require in writing that a trustee resign, resulting in automatic vacation of office without need for a meeting, consent, or application of public-law principles. The High Court erred by applying public-law standards and not giving effect to the contractual terms of the trust deed.

Citation
[2021] NASC 18
Parties
First Appellant: Hans-Wilhelm Schütte; Second Appellant: Dorothea Johanna Schütte; Third Appellant: Herbert Maier; Respondent: Ascan Schütte
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
13 April 2021
Case Number
SA 27 of 2019
Procedural Posture
Civil Appeal / Supreme Court Judgment
Outcome
Appeal upheld
Legal Topics
Interpretation of Trust Deeds, Vacation of Office of Trustee, Contractual Principles in Trusts
Source Language
English
Trust Law Contract Law Interpretation of Trust Deeds Vacation of Office of Trustee Contractual Principles in Trusts

Case Brief

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Parties

Hans-Wilhelm Schütte

First Appellant

Dorothea Johanna Schütte

Second Appellant

Herbert Maier

Third Appellant

Ascan Schütte

Respondent

Procedural Posture

Civil Appeal / Supreme Court Judgment

Legal Issues

  1. 1 Whether the trust deed authorised removal of a trustee by majority decision
  2. 2 Interpretation of clause 4.4.6 of the trust deed regarding vacation of office
  3. 3 Applicability of public-law principles to inter vivos trusts

Ratio Decidendi

Clause 4.4.6 of the trust deed is a special, unambiguous provision that allows the majority of trustees to require in writing that a trustee resign, resulting in automatic vacation of office without need for a meeting, consent, or application of public-law principles. The High Court erred by applying public-law standards and not giving effect to the contractual terms of the trust deed.

Court Disposition

Appeal upheld

Orders

  • The appeal is upheld with costs, limited to one instructing and one instructed legal practitioner.
  • The order of the High Court is set aside and substituted with dismissal of the application with costs.