FENNER and ORS (J W SIBSON TRUST) [2014] NZHC 2564

FENNER and ORS (J W SIBSON TRUST) [2014] NZHC 2564

The court approved deletion of clause 3 and replacement with the proposed modern investment clause because the proposed clause appropriately expands and clarifies trustee investment powers consistent with statutory obligations; the orders were made but will remain in the court file until applicants file an affidavit confirming no responses were received to the public notices in The New Zealand Herald and The New Zealand Gazette.

Citation
[2014] NZHC 2564
Parties
Applicant/trustee: Bradley Thomas Fenner; Applicant/trustee: David Clutha Gordon Bridges; Applicant/trustee: Paul Leonard Palmer Chapman; Respondent Interested Party: Attorney-General; Subject of Proceeding: Joan Winifred Sibson Trust (CC26611)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 October 2014
Procedural Posture
Application Under the Charitable Trusts Act 1957 to Amend Trust Deed / Oral Judgment on Application to Delete and Replace Clause of Trust Deed; Orders Reserved to Lie Pending Affidavit Confirming No Responses to Public Notices
Outcome
Court ordered deletion of clause 3 of the trust deed and its replacement with the proposed expanded investment clause; orders to remain in the court file until affidavit confirming no responses to public notices is filed.
Legal Topics
Trust Deed Amendment, Trustee Investment Powers, Public Notice Requirements, Role of Attorney General in Charitable Trust Matters
Charitable Trusts Trust Law Trustee Investment Law Equity Trust Deed Amendment Trustee Investment Powers Public Notice Requirements Role of Attorney General in Charitable Trust Matters

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Parties

Bradley Thomas Fenner

Applicant/trustee

David Clutha Gordon Bridges

Applicant/trustee

Paul Leonard Palmer Chapman

Applicant/trustee

Attorney-General

Respondent Interested Party

Joan Winifred Sibson Trust (CC26611)

Subject of Proceeding

Procedural Posture

Application Under the Charitable Trusts Act 1957 to Amend Trust Deed / Oral Judgment on Application to Delete and Replace Clause of Trust Deed; Orders Reserved to Lie Pending Affidavit Confirming No Responses to Public Notices

Legal Issues

  1. 1 Whether clause 3 of the Joan Winifred Sibson Trust deed should be deleted and replaced to expand trustee investment powers
  2. 2 Whether statutory and procedural requirements for amendment (including public notice) have been satisfied
  3. 3 Whether the Attorney-General's report precludes or obviates the need for formal deed amendment

Ratio Decidendi

The court approved deletion of clause 3 and replacement with the proposed modern investment clause because the proposed clause appropriately expands and clarifies trustee investment powers consistent with statutory obligations; the orders were made but will remain in the court file until applicants file an affidavit confirming no responses were received to the public notices in The New Zealand Herald and The New Zealand Gazette.

Court Disposition

Court ordered deletion of clause 3 of the trust deed and its replacement with the proposed expanded investment clause; orders to remain in the court file until affidavit confirming no responses to public notices is filed.

Orders

  • Delete clause 3 of the trust deed of the Joan Winifred Sibson Trust dated 1 February 1967.
  • Replace clause 3 with the proposed clause set out at paragraph (a) of the application dated 18 September 2014 (expanded investment powers including wide investment powers, ability to incorporate companies, enter into derivative and similar transactions, appoint investment managers and administrators).