RE BARHAM & ORS [2023] NZHC 2762

RE BARHAM & ORS [2023] NZHC 2762

The Court approved the 1977 Trust Deed as replacing the 1976 deed under s33 Charitable Trusts Act 1957, declared that past non-compliance in trustee appointment and reappointment processes did not invalidate the appointments or the trustees' exercise of powers and granted declarations under s133 Trusts Act 2019 and the Court's inherent jurisdiction to regularise past appointments and direct a practical future appointment/removal process (majority by continuing trustees), removed clause 20 requiring four‑year retirements, waived advertising requirements, and ordered costs be paid from the trust fund.

Citation
[2023] NZHC 2762
Parties
Plaintiffs: Michael David Barham; Marcus Octavius Bousfield; Edward Anthony Bostock; Anna Leithapatu as trustees of the Joan Fernie Charitable Trust Board; Respondent: Attorney-General
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 October 2023
Procedural Posture
Originating Application Under the Charitable Trusts Act 1957 and Trusts Act 2019 / Judgment on Originating Application (directions and Declarations)
Outcome
Application granted: orders and declarations made to approve the 1977 Trust Deed, validate past trustee appointments, set directions for future appointments/removals, remove cl20, waive advertising, and permit recovery of costs from the trust fund.
Legal Topics
Amendment/ratification of Trust Deed, Validation of Trustee Appointments, Court Declarations Under S133 Trusts Act 2019, Approval Under S33 Charitable Trusts Act 1957, Waiver of Advertising Requirements, Removal of Procedural Irregularities
Charitable Trust Law Trusts Civil Procedure Equity Amendment/ratification of Trust Deed Validation of Trustee Appointments Court Declarations Under S133 Trusts Act 2019 Approval Under S33 Charitable Trusts Act 1957 +2 more

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Parties

Michael David Barham; Marcus Octavius Bousfield; Edward Anthony Bostock; Anna Leithapatu as trustees of the Joan Fernie Charitable Trust Board

Plaintiffs

Attorney-General

Respondent

Procedural Posture

Originating Application Under the Charitable Trusts Act 1957 and Trusts Act 2019 / Judgment on Originating Application (directions and Declarations)

Legal Issues

  1. 1 Whether the 1977 trust deed can be approved as replacing the 1976 deed under s33 Charitable Trusts Act 1957
  2. 2 Whether past trustee appointment and reappointment irregularities (2007–2023) invalidate appointments or exercises of power and whether declarations under s133 Trusts Act 2019 can remedy them
  3. 3 Whether advertising requirements under the Charitable Trusts Act should be waived

Ratio Decidendi

The Court approved the 1977 Trust Deed as replacing the 1976 deed under s33 Charitable Trusts Act 1957, declared that past non-compliance in trustee appointment and reappointment processes did not invalidate the appointments or the trustees' exercise of powers and granted declarations under s133 Trusts Act 2019 and the Court's inherent jurisdiction to regularise past appointments and direct a practical future appointment/removal process (majority by continuing trustees), removed clause 20 requiring four‑year retirements, waived advertising requirements, and ordered costs be paid from the trust fund.

Court Disposition

Application granted: orders and declarations made to approve the 1977 Trust Deed, validate past trustee appointments, set directions for future appointments/removals, remove cl20, waive advertising, and permit recovery of costs from the trust fund.

Orders

  • Leave granted to file the application as to Trusts Act directions by way of originating application
  • Directions under r19.5A High Court Rules 2016 that a statement of claim be filed