ALBERT ALLOO & SONS TRUSTEE COMPANY (2009) LIMITED v IRVINE [2021] NZHC 860 [22 April 2021]

ALBERT ALLOO & SONS TRUSTEE COMPANY (2009) LIMITED v IRVINE [2021] NZHC 860 [22 April 2021]

Leave to commence by originating application was granted because the dispute (a trustee resignation conditioned on appointment of a replacement) is straightforward, unlikely to require discovery or interlocutory steps, and the originating application procedure better secures a just, speedy and inexpensive resolution; beneficiaries should be served and the Court will give directions as to service but will not direct service via the beneficiaries' solicitor without that solicitor's agreement.

Citation
[2021] NZHC 860
Parties
Applicant / Trustee: ALBERT ALLOO & SONS TRUSTEE COMPANY (2009) LIMITED; Respondent / Trustee: PATRICIA MARY IRVINE
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 April 2021
Procedural Posture
Trusts Act 2019 Proceeding for Appointment of Trustee and Related Relief / Application for Leave to Commence by Originating Application and Directions as to Service (leave Granted)
Outcome
Leave granted to commence proceeding by originating application; directions given regarding service on beneficiaries; leave reserved for further directions on beneficiary classes or minors
Legal Topics
Appointment of Trustee, Resignation of Trustee, Service on Beneficiaries, Procedural Mechanism Originating Application
Trusts Equity Civil Procedure Appointment of Trustee Resignation of Trustee Service on Beneficiaries Procedural Mechanism Originating Application

Case Brief

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Parties

ALBERT ALLOO & SONS TRUSTEE COMPANY (2009) LIMITED

Applicant / Trustee

PATRICIA MARY IRVINE

Respondent / Trustee

Procedural Posture

Trusts Act 2019 Proceeding for Appointment of Trustee and Related Relief / Application for Leave to Commence by Originating Application and Directions as to Service (leave Granted)

Legal Issues

  1. 1 Whether leave should be granted to commence the proceeding by originating application under High Court Rules
  2. 2 Whether the Court should make orders to appoint a replacement trustee or a receiver
  3. 3 Whether and how beneficiaries of the trust should be served with the proceeding

Ratio Decidendi

Leave to commence by originating application was granted because the dispute (a trustee resignation conditioned on appointment of a replacement) is straightforward, unlikely to require discovery or interlocutory steps, and the originating application procedure better secures a just, speedy and inexpensive resolution; beneficiaries should be served and the Court will give directions as to service but will not direct service via the beneficiaries' solicitor without that solicitor's agreement.

Court Disposition

Leave granted to commence proceeding by originating application; directions given regarding service on beneficiaries; leave reserved for further directions on beneficiary classes or minors

Orders

  • Leave granted for commencement by originating application
  • Beneficiaries of the NT Butterfield Family Trust are to be served with the proceeding