PATRICK DONOVAN AND ANOR V KATHERINE FAY LYNSKEY AND ANOR HC BLE CIV 2006 406 293

PATRICK DONOVAN AND ANOR V KATHERINE FAY LYNSKEY AND ANOR HC BLE CIV 2006 406 293

Because the Trust Deed expressly stipulated a minimum number of trustees of one, s2(4) of the Trustee Act gives effect to that contrary intention and Mr Turner validly retired so that Mr Donovan became sole trustee; Rule 4.52 did not apply because there was no event making it necessary or desirable to add or change a party in the senses contemplated by the rule; accordingly the plaintiffs' application for a New Parties Order was inappropriate and is dismissed.

Citation
openlaw-c41d0e44_b88b_4d66_a651_f4238b02e055.pdf
Parties
First Plaintiff: Patrick Donovan; Second Plaintiffs: Patrick Donovan and Michael Bernard Tonks Turner; First Defendant: Katherine Fay Lynskey; Second Defendant: Kathy Lynskey Wines Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 June 2009
Procedural Posture
Civil Litigation (contract, Negligence, Trust) / Interlocutory Application for Removal/substitution of Plaintiff (trustee Retirement)
Outcome
Application dismissed
Legal Topics
Retirement of Trustee, Removal/substitution of Parties, High Court Rules R4.52 and R15.20, Section 45 Trustee Act 1956, Security for Costs, Discontinuance
Trusts Civil Procedure Contract Law Negligence Costs and Security for Costs Family/relationship Property Retirement of Trustee Removal/substitution of Parties +4 more

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Parties

Patrick Donovan

First Plaintiff

Patrick Donovan and Michael Bernard Tonks Turner

Second Plaintiffs

Katherine Fay Lynskey

First Defendant

Kathy Lynskey Wines Limited

Second Defendant

Procedural Posture

Civil Litigation (contract, Negligence, Trust) / Interlocutory Application for Removal/substitution of Plaintiff (trustee Retirement)

Legal Issues

  1. 1 Whether a trustee may retire and be removed as a plaintiff while leaving a sole trustee in office
  2. 2 Whether High Court Rule 4.52 applies to substitution following trustee retirement
  3. 3 Whether the Trustee Act s45(3) precludes retirement absent replacement where trust instrument specifies minimum trustees

Ratio Decidendi

Because the Trust Deed expressly stipulated a minimum number of trustees of one, s2(4) of the Trustee Act gives effect to that contrary intention and Mr Turner validly retired so that Mr Donovan became sole trustee; Rule 4.52 did not apply because there was no event making it necessary or desirable to add or change a party in the senses contemplated by the rule; accordingly the plaintiffs' application for a New Parties Order was inappropriate and is dismissed.

Court Disposition

Application dismissed

Orders

  • Application dismissed
  • Costs reserved; preliminary view that plaintiffs should pay defendants' costs of this application