RAKIHIA TAHUMATĀ TAU [2023] NZHC 2544

RAKIHIA TAHUMATĀ TAU [2023] NZHC 2544

The court has jurisdiction under ss122, 124 and 125 of the Trusts Act 2019 to approve the trustees' proposed amendment to clause 6.1 of the FEUT deed and to waive the requirement for unanimous beneficiary consent where the variation concerns timing only, does not reduce or remove any vested interest, and where affected beneficiaries and the Settlor support the change; leave to proceed by without-notice Originating Application is justified.

Citation
[2023] NZHC 2544
Parties
Applicants / Trustees: Trustees of the Forestry Emission Unit Trust: Rakihia Tahumatā Tau; Paul Francis Majurey; Bronwyn Dawn Koroheke; Raymond Tau Henare; Annette Te Imaima Sykes; Lynell Tuffery Huria; Settlor: Minister for Climate Change Issues; Residual Beneficiary: The Crown
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 September 2023
Procedural Posture
Application Under the Trusts Act 2019 to Vary a Trust Deed (originating Application Without Notice) / First Instance Determination of Without Notice Originating Application to Approve Variation and Waive Beneficiary Consents
Outcome
Application granted in part: leave to proceed by without-notice Originating Application granted; requirement for unanimous beneficiary consent waived under s125; variation to clause 6.1 approved under s124 and s122 with immediate effect
Legal Topics
Variation of Trust Deed, Waiver of Beneficiary Consent Under S125 Trusts Act 2019, Application of Ss122, 124, 125 Trusts Act 2019, Originating Application Without Notice (high Court Rules)
Trusts Equity Public Law Procedure Variation of Trust Deed Waiver of Beneficiary Consent Under S125 Trusts Act 2019 Application of Ss122,124,125 Trusts Act 2019 Originating Application Without Notice (high Court Rules)

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Parties

Trustees of the Forestry Emission Unit Trust: Rakihia Tahumatā Tau; Paul Francis Majurey; Bronwyn Dawn Koroheke; Raymond Tau Henare; Annette Te Imaima Sykes; Lynell Tuffery Huria

Applicants / Trustees

Minister for Climate Change Issues

Settlor

The Crown

Residual Beneficiary

Procedural Posture

Application Under the Trusts Act 2019 to Vary a Trust Deed (originating Application Without Notice) / First Instance Determination of Without Notice Originating Application to Approve Variation and Waive Beneficiary Consents

Legal Issues

  1. 1 Whether the court can waive the requirement for unanimous beneficiary consent under s125 Trusts Act 2019 to permit a variation under s122
  2. 2 Whether the s122(2)(b) requirement that trustees receive a request to vary from or on behalf of each beneficiary can be waived or satisfied where the variation is proposed by trustees and supported by affected beneficiaries
  3. 3 Whether the proposed variation would reduce or remove any vested interest in the trust property

Ratio Decidendi

The court has jurisdiction under ss122, 124 and 125 of the Trusts Act 2019 to approve the trustees' proposed amendment to clause 6.1 of the FEUT deed and to waive the requirement for unanimous beneficiary consent where the variation concerns timing only, does not reduce or remove any vested interest, and where affected beneficiaries and the Settlor support the change; leave to proceed by without-notice Originating Application is justified.

Court Disposition

Application granted in part: leave to proceed by without-notice Originating Application granted; requirement for unanimous beneficiary consent waived under s125; variation to clause 6.1 approved under s124 and s122 with immediate effect

Orders

  • Leave granted for applicants to proceed by way of without-notice Originating Application
  • Waiver granted of the requirement for unanimous beneficiary consent under s122 of the Trusts Act 2019 to facilitate variation of clause 6.1 of the Forestry Emission Unit Trust deed with immediate effect