MCCALLUM v MCCALLUM [2017] NZHC 1218

MCCALLUM v MCCALLUM [2017] NZHC 1218

The Court removed the defendant as trustee because unchallenged evidence established he was unfit to act (refusal to participate, inability to make sensible decisions, conflation of personal interest and trustee duties), and removal was necessary for the welfare of beneficiaries and protection of trust property; the...

Source-derived case information.

Citation
[2017] NZHC 1218
Parties
First Plaintiff; Settlor; Trustee: William Fraser McCallum; Second Plaintiff; Trustee: Carrick Robert Zachary McCallum; Second Plaintiff; Trustee: Callum Fraser McCallum; Defendant; Trustee (removed): William Fraser McCallum Junior
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 June 2017
Procedural Posture
Trusts — Application to Remove Trustee and Consequential Relief / Application Hearing; Judgment Delivered (reasons)
Outcome
Application granted in part and dismissed in part.
Legal Topics
Removal of Trustees, Interpretation of Trust Deed, Inherent Jurisdiction of the Court, Vesting of Land in Trustees, Costs Order Against Trust
Trust Law Property Law Civil Procedure Removal of Trustees Interpretation of Trust Deed Inherent Jurisdiction of the Court Vesting of Land in Trustees Costs Order Against Trust

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Parties

William Fraser McCallum

First Plaintiff; Settlor; Trustee

Carrick Robert Zachary McCallum

Second Plaintiff; Trustee

Callum Fraser McCallum

Second Plaintiff; Trustee

William Fraser McCallum Junior

Defendant; Trustee (removed)

Procedural Posture

Trusts — Application to Remove Trustee and Consequential Relief / Application Hearing; Judgment Delivered (reasons)

Legal Issues

  1. 1 Whether the Court should exercise its inherent jurisdiction to remove a trustee
  2. 2 Whether the trust deed gives the settlor a power to remove trustees
  3. 3 Whether the Court may vary the trust deed to vest a removal power in the settlor under its inherent jurisdiction

Ratio Decidendi

The Court removed the defendant as trustee because unchallenged evidence established he was unfit to act (refusal to participate, inability to make sensible decisions, conflation of personal interest and trustee duties), and removal was necessary for the welfare of beneficiaries and protection of trust property; the Court declined to declare that the trust deed vested the settlor with a power to remove trustees or to use inherent jurisdiction to vary the deed to create such a power because the deed unambiguously confined the settlor to appointment powers and the inherent jurisdiction cannot be used to grant a settlor a removal power merely for convenience absent primary...

Court Disposition

Application granted in part and dismissed in part.

Orders

  • Defendant William Fraser McCallum Junior removed as trustee of the W F McCallum Trust.
  • Title to the two specified properties vested in the remaining trustees.