AITKENHEAD & ANOR v KOOPERBERG & ANOR [2017] NZHC 3071

AITKENHEAD & ANOR v KOOPERBERG & ANOR [2017] NZHC 3071

The Court appointed New Zealand Trustee Services Ltd as substitute trustee under s 51 for the proper administration of the trust and held that the trust fund should not meet the costs of the application because the application was made necessary by the first respondent's persistent defaults; accordingly indemnity costs of the application were ordered against Phillip Kooperberg personally.

Citation
[2017] NZHC 3071
Parties
Applicant/trustee: Helen Denise Aitkenhead; Applicant/trustee: Natalie Eleanor Jonkers; First Respondent/trustee: Phillip Leonard Kooperberg; Second Respondent/proposed Trustee: New Zealand Trustee Services Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 December 2017
Procedural Posture
Application Under the Trustee Act 1956 (s 51) and the Court's Inherent Jurisdiction / Decision on Application (on the Papers)
Outcome
Substitutional appointment of New Zealand Trustee Services Limited as trustee; indemnity costs awarded personally against Phillip Kooperberg; administration costs to be assessed by New Zealand Trustee Services.
Legal Topics
Removal and Appointment of Trustees, Trust Administration Costs, Indemnity Costs, Court Supervisory Jurisdiction Over Trusts
Trusts Civil Procedure Costs Removal and Appointment of Trustees Trust Administration Costs Indemnity Costs Court Supervisory Jurisdiction Over Trusts

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Parties

Helen Denise Aitkenhead

Applicant/trustee

Natalie Eleanor Jonkers

Applicant/trustee

Phillip Leonard Kooperberg

First Respondent/trustee

New Zealand Trustee Services Limited

Second Respondent/proposed Trustee

Procedural Posture

Application Under the Trustee Act 1956 (s 51) and the Court's Inherent Jurisdiction / Decision on Application (on the Papers)

Legal Issues

  1. 1 Whether to remove existing trustees and appoint a substitute trustee under s 51 Trustee Act 1956
  2. 2 Whether administration costs and legal costs should be paid from the trust fund
  3. 3 Whether costs should be awarded personally against the defaulting trustee and on an indemnity basis

Ratio Decidendi

The Court appointed New Zealand Trustee Services Ltd as substitute trustee under s 51 for the proper administration of the trust and held that the trust fund should not meet the costs of the application because the application was made necessary by the first respondent's persistent defaults; accordingly indemnity costs of the application were ordered against Phillip Kooperberg personally.

Court Disposition

Substitutional appointment of New Zealand Trustee Services Limited as trustee; indemnity costs awarded personally against Phillip Kooperberg; administration costs to be assessed by New Zealand Trustee Services.

Orders

  • Appoint New Zealand Trustee Services Limited as trustee in substitution for Helen Denise Aitkenhead, Natalie Eleanor Jonkers and Phillip Leonard Kooperberg under s 51 Trustee Act 1956.
  • New Zealand Trustee Services Limited to assess administration costs for payment.