MACLEOD ex parte Scott Family Trust [2020] NZHC [2420]

MACLEOD ex parte Scott Family Trust [2020] NZHC [2420]

Clause 17.1 did not authorise the executors to remove Linda because she was not a trustee appointed by a settlor; accordingly the Court exercised its statutory powers under s 51 to remove Linda and appoint the applicants and under s 52 to vest the specified property in the new trustees; the Court dispensed with appointment of a litigation guardian and service given the administrative, uncontested nature of the application, subject to provision of a full without‑notice certificate before sealing.

Citation
MACLEOD ex parte Scott Family Trust [2020] NZHC [2420]
Parties
Plaintiff Current Trustee: Karen Yvonne Macleod; Plaintiff Current Trustee: Michelle Marion Alexander; Interested Party Incapacitated Former Trustee: Linda Patricia Scott
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 September 2020
Procedural Posture
Application Under Trustee Act 1956 for Removal of Trustee and Vesting Order / Determined on the Papers Judgment Delivered 17 September 2020
Outcome
Application granted in part: Court removed Linda Patricia Scott as trustee, appointed Karen Yvonne Macleod and Michelle Marion Alexander as trustees, granted vesting order for the specified property, dispensed with litigation guardian and service, and granted leave to use originating application procedure; sealing...
Legal Topics
Vesting Order, Removal of Trustee, Capacity, Originating Application Procedure, Service and Litigation Guardian
Trusts Equity Property Civil Procedure Vesting Order Removal of Trustee Capacity Originating Application Procedure +1 more

Case Brief

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Parties

Karen Yvonne Macleod

Plaintiff Current Trustee

Michelle Marion Alexander

Plaintiff Current Trustee

Linda Patricia Scott

Interested Party Incapacitated Former Trustee

Procedural Posture

Application Under Trustee Act 1956 for Removal of Trustee and Vesting Order / Determined on the Papers Judgment Delivered 17 September 2020

Legal Issues

  1. 1 Whether clause 17.1 of the trust deed authorised removal of a trustee who was not appointed by the settlor
  2. 2 Whether the Court should exercise its power under s 51 Trustee Act 1956 to remove a trustee and appoint replacements
  3. 3 Whether a vesting order under s 52 Trustee Act 1956 should be made to transfer legal title to the current trustees

Ratio Decidendi

Clause 17.1 did not authorise the executors to remove Linda because she was not a trustee appointed by a settlor; accordingly the Court exercised its statutory powers under s 51 to remove Linda and appoint the applicants and under s 52 to vest the specified property in the new trustees; the Court dispensed with appointment of a litigation guardian and service given the administrative, uncontested nature of the application, subject to provision of a full without‑notice certificate before sealing.

Court Disposition

Application granted in part: Court removed Linda Patricia Scott as trustee, appointed Karen Yvonne Macleod and Michelle Marion Alexander as trustees, granted vesting order for the specified property, dispensed with litigation guardian and service, and granted leave to use originating application procedure; sealing...

Orders

  • Leave to proceed by originating application granted
  • Order dispensing with appointment of a litigation guardian for Linda Patricia Scott