COONEY v ST COLUMBANS MISSION SOCIETY OF LOWER HUTT [2020] NZHC 1958

COONEY v ST COLUMBANS MISSION SOCIETY OF LOWER HUTT [2020] NZHC 1958

Because the sole beneficiaries consented, the trust produced minimal income from capital of $116,000, and winding up and equal capital distribution plainly advanced the beneficiaries' interests and accorded with the settlor's purpose, the court exercised its power under s64A Trustee Act 1956 to authorise winding up and distribution; trustees' costs ordered payable from trust assets prior to distribution.

Citation
[2020] NZHC 1958
Parties
Plaintiff Trustee: Hugh Owen Cooney; Plaintiff Trustee: Father Philip Billing; First Defendant Beneficiary Charity: St Columbans Mission Society of Lower Hutt; Second Defendant Beneficiary Charity: Pacific Leprosy Foundation
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 August 2020
Procedural Posture
Trust Variation Application Under Trustee Act 1956 / Originating Application (s64 A) on the Papers
Outcome
Application granted. Order made under s64A Trustee Act 1956 authorising winding up of the trust and equal capital distribution to the two beneficiary charities; trustees' costs and expenses to be paid from trust assets prior to distribution; leave to bring further applications granted; service dispensed with.
Legal Topics
Variation of Trust, Winding Up Trust, Distribution of Capital, Trustees' Powers Under S64 a, Service Dispensed by Court
Trusts Charities Law Equity Civil Procedure Variation of Trust Winding Up Trust Distribution of Capital Trustees' Powers Under S64 a +1 more

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Parties

Hugh Owen Cooney

Plaintiff Trustee

Father Philip Billing

Plaintiff Trustee

St Columbans Mission Society of Lower Hutt

First Defendant Beneficiary Charity

Pacific Leprosy Foundation

Second Defendant Beneficiary Charity

Procedural Posture

Trust Variation Application Under Trustee Act 1956 / Originating Application (s64 A) on the Papers

Legal Issues

  1. 1 Whether the court should exercise its power under s64A Trustee Act 1956 to vary the trust to permit winding up and capital distribution to beneficiaries
  2. 2 Whether service of proceedings could be dispensed with
  3. 3 Whether trustees' costs should be paid out of trust assets prior to distribution

Ratio Decidendi

Because the sole beneficiaries consented, the trust produced minimal income from capital of $116,000, and winding up and equal capital distribution plainly advanced the beneficiaries' interests and accorded with the settlor's purpose, the court exercised its power under s64A Trustee Act 1956 to authorise winding up and distribution; trustees' costs ordered payable from trust assets prior to distribution.

Court Disposition

Application granted. Order made under s64A Trustee Act 1956 authorising winding up of the trust and equal capital distribution to the two beneficiary charities; trustees' costs and expenses to be paid from trust assets prior to distribution; leave to bring further applications granted; service dispensed with.

Orders

  • Order under s64A Trustee Act 1956 authorising trustees to wind up the B R Berry Charitable Trust and distribute the net proceeds to the defendant beneficiaries in equal shares as a capital distribution
  • Service of these proceedings is dispensed with