APPLICATION BY THE ROMAN CATHOLIC BISHOP OF THE DIOCESE OF HAMILTON [2019] NZHC 1255

APPLICATION BY THE ROMAN CATHOLIC BISHOP OF THE DIOCESE OF HAMILTON [2019] NZHC 1255

Although s64 of the Trustee Act 1956 provides jurisdiction to authorise distribution of capital of a charitable trust, the Court will not use s64 to amend a perpetual charitable trust deed so as to terminate the trust where that would circumvent the statutory scheme in Part 3 of the Charitable Trusts Act 1957; where termination and distribution are inextricably linked and the Attorney‑General and other interested parties have not been notified, the proper course is for trustees to promote a scheme under the Charitable Trusts Act 1957; accordingly the ex parte substantive application was dismissed.

Citation
[2019] NZHC 1255
Parties
Applicant/trustee: The Roman Catholic Bishop of the Diocese of Hamilton (corporation sole) as Trustee of the Pacific Fathers Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 June 2019
Procedural Posture
Application Under S64 Trustee Act 1956 Concerning a Charitable Trust / Interlocutory and Substantive Application Decided on the Papers; Substantive Application Dismissed
Outcome
Originating application for substantive relief dismissed; without‑notice interlocutory application for service and representation granted
Legal Topics
Trust Variation, Trust Termination, Distribution of Capital, Service and Representation, Charitable Trusts Act 1957 Procedure, High Court Rules
Trusts Charitable Trusts Civil Procedure Trust Variation Trust Termination Distribution of Capital Service and Representation Charitable Trusts Act 1957 Procedure +1 more

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Parties

The Roman Catholic Bishop of the Diocese of Hamilton (corporation sole) as Trustee of the Pacific Fathers Trust

Applicant/trustee

Procedural Posture

Application Under S64 Trustee Act 1956 Concerning a Charitable Trust / Interlocutory and Substantive Application Decided on the Papers; Substantive Application Dismissed

Legal Issues

  1. 1 Whether the Court may amend a perpetual charitable trust deed under s64 Trustee Act 1956 to permit termination
  2. 2 Whether the Court may authorize distribution of the original capital of a perpetual charitable trust under s64
  3. 3 Whether the Part 3 statutory scheme in the Charitable Trusts Act 1957 must be followed for termination and capital distribution

Ratio Decidendi

Although s64 of the Trustee Act 1956 provides jurisdiction to authorise distribution of capital of a charitable trust, the Court will not use s64 to amend a perpetual charitable trust deed so as to terminate the trust where that would circumvent the statutory scheme in Part 3 of the Charitable Trusts Act 1957; where termination and distribution are inextricably linked and the Attorney‑General and other interested parties have not been notified, the proper course is for trustees to promote a scheme under the Charitable Trusts Act 1957; accordingly the ex parte substantive application was dismissed.

Court Disposition

Originating application for substantive relief dismissed; without‑notice interlocutory application for service and representation granted

Orders

  • Applicant is to represent the beneficiaries of the Trust
  • Service of this application and all other documents filed in the proceeding by the applicant is dispensed with