SETTER [2021] NZHC 1603

SETTER [2021] NZHC 1603

The Court authorised the variation of the Trust Deed under its inherent jurisdiction because the proposed change (expanding beneficiary appointment of trustees) did not alter beneficiaries' beneficial interests, was necessary or desirable for proper management, and while s130 broadly addresses variations of trustee powers, the particular amendment to appointment powers fell most appropriately to be authorised under the Court's inherent jurisdiction.

Citation
[2021] NZHC 1603
Parties
Applicant (trustee): Alistair James Setter; Applicant (trustee): Patrick Marcus Peacock; Applicant (trustee): Karen Elizabeth Middelberg; Applicant (trustee): Elizabeth Clement Jane Gray-Toswill; Applicant (trustee): Callum Leicester Gray; Applicant (trustee): Caterine Anne Avery; Applicant (trustee): George Hugh Williams; Respondent (beneficiaries): Beneficiaries of Central Hawkes Bay Consumers Power Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 June 2021
Procedural Posture
Application Under Trusts Act 2019 S130 for Variation of Trust Deed / Judgment on Application (orders Made; Reasons Issued)
Outcome
Application granted; variation of trust deed authorised under the Court's inherent jurisdiction
Legal Topics
Variation of Trust Deed, Trustee Appointment, Court Inherent Jurisdiction, Section 130 Trusts Act 2019, Consumer Owned Electricity Exemption, Commerce Act DPP Regulation
Trusts Equity Statutory Interpretation Administrative Law Energy Regulation Variation of Trust Deed Trustee Appointment Court Inherent Jurisdiction +3 more

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Parties

Alistair James Setter

Applicant (trustee)

Patrick Marcus Peacock

Applicant (trustee)

Karen Elizabeth Middelberg

Applicant (trustee)

Elizabeth Clement Jane Gray-Toswill

Applicant (trustee)

Callum Leicester Gray

Applicant (trustee)

Caterine Anne Avery

Applicant (trustee)

George Hugh Williams

Applicant (trustee)

Beneficiaries of Central Hawkes Bay Consumers Power Trust

Respondent (beneficiaries)

Procedural Posture

Application Under Trusts Act 2019 S130 for Variation of Trust Deed / Judgment on Application (orders Made; Reasons Issued)

Legal Issues

  1. 1 Whether s 130 Trusts Act 2019 authorises amendment expanding beneficiaries' power to appoint trustees
  2. 2 Whether the proposed variation alters beneficiaries' beneficial interests or involves distributive powers
  3. 3 Whether the Court should exercise statutory powers (s130 or ss124–125) or its inherent jurisdiction to authorise the variation

Ratio Decidendi

The Court authorised the variation of the Trust Deed under its inherent jurisdiction because the proposed change (expanding beneficiary appointment of trustees) did not alter beneficiaries' beneficial interests, was necessary or desirable for proper management, and while s130 broadly addresses variations of trustee powers, the particular amendment to appointment powers fell most appropriately to be authorised under the Court's inherent jurisdiction.

Court Disposition

Application granted; variation of trust deed authorised under the Court's inherent jurisdiction

Orders

  • Variation of the Trust Deed as annexed to the affidavit of Alistair James Setter at AJS-2 is confirmed
  • Orders granted pursuant to the Court's inherent jurisdiction to authorise the amendment to the power of appointment of trustees