RE M I CLIFFORD TRUST 2 [2021] NZHC 1931

RE M I CLIFFORD TRUST 2 [2021] NZHC 1931

Leave to use the originating application procedure was granted because the application was appropriately dealt with by that procedure as it is in the interests of justice (ensuring a just, speedy and inexpensive determination), the Court may appoint an independent solicitor to represent unborn beneficiaries, and conditional service by email with required acknowledgements was appropriate to avoid unnecessary costs.

Citation
[2021] NZHC 1931
Parties
Trust: M I Clifford Trust 2; Trustee/applicant: Deidre Cowlishaw Wood; Trustee/applicant: Paul Joseph Dorrance
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 December 2021
Procedural Posture
Application for Approval to Vary Trust Under Trusts Act 2019 / Leave to Use Originating Application Granted; Directions Made and Solicitor Appointed to Represent Unborn Beneficiaries
Outcome
Leave granted to use originating application; William Palmer of Buddle Findlay appointed to prepare a report on behalf of unborn beneficiaries; email service permitted subject to acknowledgment requirement; affidavit of service to be filed; costs of Mr Palmer to be paid by the Trust.
Legal Topics
Variation of Trust, Unborn Beneficiaries, Court Approval Under S124 Trusts Act 2019, Service of Proceedings
Trusts Civil Procedure Variation of Trust Unborn Beneficiaries Court Approval Under S124 Trusts Act 2019 Service of Proceedings

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Parties

M I Clifford Trust 2

Trust

Deidre Cowlishaw Wood

Trustee/applicant

Paul Joseph Dorrance

Trustee/applicant

Procedural Posture

Application for Approval to Vary Trust Under Trusts Act 2019 / Leave to Use Originating Application Granted; Directions Made and Solicitor Appointed to Represent Unborn Beneficiaries

Legal Issues

  1. 1 Whether leave should be granted to use the originating application procedure under r 19.5 High Court Rules 2016
  2. 2 Whether the Court should appoint a solicitor to represent unborn beneficiaries
  3. 3 Whether service by email on living beneficiaries is acceptable and on what conditions

Ratio Decidendi

Leave to use the originating application procedure was granted because the application was appropriately dealt with by that procedure as it is in the interests of justice (ensuring a just, speedy and inexpensive determination), the Court may appoint an independent solicitor to represent unborn beneficiaries, and conditional service by email with required acknowledgements was appropriate to avoid unnecessary costs.

Court Disposition

Leave granted to use originating application; William Palmer of Buddle Findlay appointed to prepare a report on behalf of unborn beneficiaries; email service permitted subject to acknowledgment requirement; affidavit of service to be filed; costs of Mr Palmer to be paid by the Trust.

Orders

  • Leave granted under r 19.5 High Court Rules 2016 to use the originating application procedure to seek approval under s124 Trusts Act 2019
  • William Palmer of Buddle Findlay, Christchurch, appointed to prepare a report on behalf of the unborn beneficiaries