JOHN GERARD DARBY AND WYUNA TRUSTEES LIMITED AND ANOR V T A DARBY AND OTHERS HC DUN CIV 2008-412-000450

JOHN GERARD DARBY AND WYUNA TRUSTEES LIMITED AND ANOR V T A DARBY AND OTHERS HC DUN CIV 2008-412-000450

The Court approved the insertion of clause 11 under s64A because adult beneficiaries consented, the proposed amendment contained express safeguards preventing detriment (requirement that changes benefit at least one beneficiary except for administration or error correction, protection of amounts already set aside, and prohibition on changing beneficiary classes), there was no evidence of prejudice to infant or unborn beneficiaries, and the change reflected common practice in modern discretionary trusts.

Citation
openlaw-4ea5284e_a2d3_4c75_893c_b38911efec8e.pdf
Parties
Plaintiff: John Gerard Darby; Plaintiff: Wyuna Trustees Limited; Plaintiff: Island Limited; Defendant: T A Darby
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 December 2008
Procedural Posture
Trusts Variation Under Trustee Act 1956 S64 a / Application Heard and Decided (oral Judgment)
Outcome
Application granted; court approved proposed amendment (clause 11) to the Wyuna and Karearea trust deeds on behalf of minor and unborn beneficiaries
Legal Topics
Variation of Trust Deed, Court Approval for Infants and Unborn Beneficiaries, Power of Amendment to Trusts, Rule Against Perpetuities
Trusts Equity Variation of Trust Deed Court Approval for Infants and Unborn Beneficiaries Power of Amendment to Trusts Rule Against Perpetuities

Case Brief

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Parties

John Gerard Darby

Plaintiff

Wyuna Trustees Limited

Plaintiff

Island Limited

Plaintiff

T A Darby

Defendant

Procedural Posture

Trusts Variation Under Trustee Act 1956 S64 a / Application Heard and Decided (oral Judgment)

Legal Issues

  1. 1 Whether the Court should approve insertion of clause 11 granting trustees power to amend the trust deeds under s64A
  2. 2 Whether the proposed amendment would be to the detriment of infant or unborn beneficiaries
  3. 3 Whether the safeguards in the proposed clause are sufficient to prevent prejudice to vested entitlements and beneficiary classes

Ratio Decidendi

The Court approved the insertion of clause 11 under s64A because adult beneficiaries consented, the proposed amendment contained express safeguards preventing detriment (requirement that changes benefit at least one beneficiary except for administration or error correction, protection of amounts already set aside, and prohibition on changing beneficiary classes), there was no evidence of prejudice to infant or unborn beneficiaries, and the change reflected common practice in modern discretionary trusts.

Court Disposition

Application granted; court approved proposed amendment (clause 11) to the Wyuna and Karearea trust deeds on behalf of minor and unborn beneficiaries

Orders

  • Court approves addition of clause 11 (power of amendment) to the Wyuna and Karearea trust deeds under s64A of the Trustee Act 1956 on behalf of minor and unborn beneficiaries.
  • Leave reserved as to costs.