MUDGWAY AND ORS V SLACK AND ANOR HC AK CIV-2010-404-2058

MUDGWAY AND ORS V SLACK AND ANOR HC AK CIV-2010-404-2058

Given the conflict positions of the current trustees, their failure or unwillingness to protect the beneficiaries' interests and to provide information or comply with Family Court orders, it was expedient to remove the existing trustees and appoint the Public Trust as sole trustee pursuant to the Court's powers under s51 Trustee Act 1956 and its inherent jurisdiction; the trust deed must be amended to vest the power to appoint and remove trustees in the Public Trust to secure the beneficiaries' welfare, and consequential vesting of the trust property and removal of the plaintiff's notice of claim were ordered, while further bespoke remedial orders were reserved pending the Public Trust's...

Citation
openlaw-eb6bb284_a10c_42c1_aabc_fd780706b1c1.pdf
Parties
First Plaintiff: Nicola Jane Mudgway; Second Plaintiff: Sophia Jane Mudgway (minor) by her guardian ad litem Roderick Hugh Stewart; Third Plaintiff: Gabriella Lili Mudgway (minor) by her guardian ad litem Roderick Hugh Stewart; Fourth Plaintiff: Madison Lee Mudgway (minor) by her guardian ad litem Roderick Hugh Stewart; First Defendant: Timothy Upton Slack; Second Defendant: Nigel Hugh Beck
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 July 2010
Procedural Posture
Application Under Trustee Act 1956 for Removal and Appointment of Trustees (trusts Litigation) / High Court Judgment on Application (final)
Outcome
Application granted in part: existing trustees removed and Public Trust appointed; trust deed varied; property vested in Public Trust; certain further relief reserved
Legal Topics
Removal of Trustees, Appointment of Public Trust as Trustee, Variation of Trust Deed (administrative Provision), Occupation Order Enforcement, Trustees' Duties and Conflicts of Interest, Disclosure and Discovery by Trustees
Trusts Equity Civil Procedure Family Law Removal of Trustees Appointment of Public Trust as Trustee Variation of Trust Deed (administrative Provision) Occupation Order Enforcement +2 more

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Parties

Nicola Jane Mudgway

First Plaintiff

Sophia Jane Mudgway (minor) by her guardian ad litem Roderick Hugh Stewart

Second Plaintiff

Gabriella Lili Mudgway (minor) by her guardian ad litem Roderick Hugh Stewart

Third Plaintiff

Madison Lee Mudgway (minor) by her guardian ad litem Roderick Hugh Stewart

Fourth Plaintiff

Timothy Upton Slack

First Defendant

Nigel Hugh Beck

Second Defendant

Procedural Posture

Application Under Trustee Act 1956 for Removal and Appointment of Trustees (trusts Litigation) / High Court Judgment on Application (final)

Legal Issues

  1. 1 Whether it is expedient to remove existing trustees of the Madison Family Trust
  2. 2 Whether the Public Trust should be appointed sole trustee under s51 Trustee Act 1956
  3. 3 Whether the trust deed should be varied to transfer appointment/removal power from the settlor to the Public Trust

Ratio Decidendi

Given the conflict positions of the current trustees, their failure or unwillingness to protect the beneficiaries' interests and to provide information or comply with Family Court orders, it was expedient to remove the existing trustees and appoint the Public Trust as sole trustee pursuant to the Court's powers under s51 Trustee Act 1956 and its inherent jurisdiction; the trust deed must be amended to vest the power to appoint and remove trustees in the Public Trust to secure the beneficiaries' welfare, and consequential vesting of the trust property and removal of the plaintiff's notice of claim were ordered, while further bespoke remedial orders were reserved pending the Public Trust's...

Court Disposition

Application granted in part: existing trustees removed and Public Trust appointed; trust deed varied; property vested in Public Trust; certain further relief reserved

Orders

  • Timothy Upton Slack and/or Nigel Hugh Beck are removed as trustees of the Madison Family Trust
  • The Public Trust (Auckland) is appointed as sole trustee pursuant to s51(1) Trustee Act 1956