SMITH v PENNEY & ANOR [2013] NZHC 2727

SMITH v PENNEY & ANOR [2013] NZHC 2727

The Court exercised its statutory power under s 51 of the Trustee Act 1956 to remove the present trustees (unless they resigned within the specified short period) and to appoint two consenting and appropriate replacement trustees (Nole Ronald Irvine and Michael Charles Taylor), and ordered the present trustees to transfer all trust assets and records to the new trustees.

Citation
[2013] NZHC 2727
Parties
Plaintiff (trustee of the Maria Charles Family Trust): Nigel Philip Smith; First Defendant (personal Capacity and Trustee of the Maria Charles Family Trust): Stephen Charles Penney; Second Defendant (personal Capacity and Trustee of the Maria Charles Family Trust): Donna Maria Simunovich
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 October 2013
Procedural Posture
Trust Litigation / Application to Set Aside Judgment and Appointment of New Trustees (interlocutory Oral Judgment)
Outcome
Present trustees removed (subject to short resignation window) and replaced by Nole Ronald Irvine and Michael Charles Taylor; present trustees ordered to transfer assets and deliver records; new trustees granted leave to intervene; matter listed for review.
Legal Topics
Removal and Appointment of Trustees, Section 51 Trustee Act 1956, Setting Aside Judgment, Transfer of Trust Property and Records
Trusts Civil Procedure Fiduciary Law Statutory Powers of Court Removal and Appointment of Trustees Section 51 Trustee Act 1956 Setting Aside Judgment Transfer of Trust Property and Records

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Parties

Nigel Philip Smith

Plaintiff (trustee of the Maria Charles Family Trust)

Stephen Charles Penney

First Defendant (personal Capacity and Trustee of the Maria Charles Family Trust)

Donna Maria Simunovich

Second Defendant (personal Capacity and Trustee of the Maria Charles Family Trust)

Procedural Posture

Trust Litigation / Application to Set Aside Judgment and Appointment of New Trustees (interlocutory Oral Judgment)

Legal Issues

  1. 1 Whether the judgment entered against a trustee should be set aside
  2. 2 Whether the present trustees should be removed and replaced under s 51 Trustee Act 1956
  3. 3 Which persons are appropriate to be appointed as new trustees

Ratio Decidendi

The Court exercised its statutory power under s 51 of the Trustee Act 1956 to remove the present trustees (unless they resigned within the specified short period) and to appoint two consenting and appropriate replacement trustees (Nole Ronald Irvine and Michael Charles Taylor), and ordered the present trustees to transfer all trust assets and records to the new trustees.

Court Disposition

Present trustees removed (subject to short resignation window) and replaced by Nole Ronald Irvine and Michael Charles Taylor; present trustees ordered to transfer assets and deliver records; new trustees granted leave to intervene; matter listed for review.

Orders

  • Pursuant to s 51 Trustee Act 1956 present trustees (Donna Maria Simunovich, Stephen Charles Penney and Nigel Philip Smith) to resign within two working days or be removed as trustees as at 5.00 pm on Tuesday 22 October 2013
  • Pursuant to s 51 Trustee Act 1956 Nole Ronald Irvine (or a trustee company nominated and controlled by him) and Michael Charles Taylor (or a trustee company nominated and controlled by him) to be appointed trustees effective from the resignations or 5.00 pm on Tuesday 22 October 2013