GOUGH V RAM CUSTODIAN LTD & ORS HC AK CIV-2011-404-006645

GOUGH V RAM CUSTODIAN LTD & ORS HC AK CIV-2011-404-006645

Clause 6B permits multiple reappointments; clause 6B(f) is the operative power to appoint (and thus reappoint) trustees; the waiver in clause 6B(c) had to be exercised within the three‑month period prior to expiry to prevent retirement and creation of a vacancy; because the waiver was not timely in 2006 Ram Custodian's subsequent appointments (2006–2009 and 2009–2012) were invalid; there is insufficient evidence of any deed reappointing Mr Tothill in 2005 so that appointment (2005–2008) was invalid, but Mr Tothill was validly appointed in 2008 and 2011.

Citation
openlaw-b7d46911_2fe3_44e8_be29_5cd8d8ba0096.pdf
Parties
Plaintiff: H D Gough; First Defendant: Ram Custodian Limited; First Defendant: J R Strahl; First Defendant: B W M Tothill; Second Defendant: R W Raymond; Second Defendant: D A H Brown; Second Defendant: B W M Tothill; Third Defendant: R W Raymond; Third Defendant: D A H Brown; Third Defendant: B W M Tothill
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 August 2012
Procedural Posture
Civil Trust Dispute / High Court Judgment on Validity of Trustee Appointments (preliminary Issues)
Outcome
Judgment on preliminary issues: court held clause 6B allows multiple reappointments; Ram Custodian not validly appointed 28 Oct 2006–28 Oct 2009 or 28 Oct 2009–28 Oct 2012; B W M Tothill not validly appointed 28 Oct 2005–28 Oct 2008 but validly appointed 28 Oct 2008–28 Oct 2011 and 28 Oct 2011–28 Oct 2014; costs...
Legal Topics
Interpretation of Trust Deed, Appointment and Reappointment of Trustees, Waiver of Retirement, Vesting of Trust Property, Trusts Administration
Trusts Property Equity Contract Interpretation of Trust Deed Appointment and Reappointment of Trustees Waiver of Retirement Vesting of Trust Property +1 more

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Parties

H D Gough

Plaintiff

Ram Custodian Limited

First Defendant

J R Strahl

First Defendant

B W M Tothill

First Defendant

R W Raymond

Second Defendant

D A H Brown

Second Defendant

B W M Tothill

Second Defendant

R W Raymond

Third Defendant

D A H Brown

Third Defendant

B W M Tothill

Third Defendant

Procedural Posture

Civil Trust Dispute / High Court Judgment on Validity of Trustee Appointments (preliminary Issues)

Legal Issues

  1. 1 Whether a trustee of the Head Trust may be reappointed more than once under clause 6B
  2. 2 Whether Ram Custodian's appointments in 2006 and 2009 complied with the Deed of Variation
  3. 3 Whether B W M Tothill's appointments in 2005, 2008 and 2011 complied with the Deed of Variation

Ratio Decidendi

Clause 6B permits multiple reappointments; clause 6B(f) is the operative power to appoint (and thus reappoint) trustees; the waiver in clause 6B(c) had to be exercised within the three‑month period prior to expiry to prevent retirement and creation of a vacancy; because the waiver was not timely in 2006 Ram Custodian's subsequent appointments (2006–2009 and 2009–2012) were invalid; there is insufficient evidence of any deed reappointing Mr Tothill in 2005 so that appointment (2005–2008) was invalid, but Mr Tothill was validly appointed in 2008 and 2011.

Court Disposition

Judgment on preliminary issues: court held clause 6B allows multiple reappointments; Ram Custodian not validly appointed 28 Oct 2006–28 Oct 2009 or 28 Oct 2009–28 Oct 2012; B W M Tothill not validly appointed 28 Oct 2005–28 Oct 2008 but validly appointed 28 Oct 2008–28 Oct 2011 and 28 Oct 2011–28 Oct 2014; costs...

Orders

  • Declarations: clause 6B permits multiple reappointments; Ram Custodian not validly appointed for periods 28/10/2006–28/10/2009 and 28/10/2009–28/10/2012; B W M Tothill not validly appointed 28/10/2005–28/10/2008 and validly appointed for 28/10/2008–28/10/2011 and 28/10/2011–28/10/2014
  • Costs reserved; parties to file memoranda on costs by 13 September 2012 and memoranda in reply by 20 September 2012