EGGINK & ORS v EGGINK & ORS [2014] NZHC 1784

EGGINK & ORS v EGGINK & ORS [2014] NZHC 1784

By consent the Court ordered the removal of Ann Ellen Eggink as trustee and appointed Wayne Seymour Chapman as independent trustee, conferring on him the usual powers of a trustee together with express, binding decision‑making powers to resolve deadlocks and to overrule co‑trustees where necessary to protect the life tenant and beneficiaries; the declaration claim as to indebtedness was adjourned and costs were reserved.

Citation
[2014] NZHC 1784
Parties
Plaintiff: Joy Ellen Campbell; Plaintiff: Michael Richard Eggink; Plaintiff: Antonie Hendrik Eggink; Second Plaintiffs: Antonie Hendrik Eggink and Michael Richard Eggink (as partners in the Antonie Hendrik Eggink and Michael Richard Eggink Farm Partnership); Second Defendant / Life Tenant and Trustee: Ann Ellen (Ann) Eggink; Trustee / Defendant: Ross (R) Dunlop
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 July 2014
Procedural Posture
Trusts; Estate; Declaratory Relief; Trustee Act Application / Interim Judgment (consent Orders)
Outcome
Consent orders made: Ann Ellen Eggink removed as trustee and replaced by Wayne Seymour Chapman who is vested with usual trustee powers and specific binding powers to resolve disputes; second cause (declaration of indebtedness) adjourned; costs reserved.
Legal Topics
Removal and Replacement of Trustees, Appointment of Independent Trustee, Trustee Powers and Deadlock Resolution, Life Interest and Maintenance Advances, Court Supervisory Jurisdiction Over Trusts, Declaration of Indebtedness
Trusts Estates and Probate Declaratory Relief Equity and Fiduciary Duties Civil Procedure Removal and Replacement of Trustees Appointment of Independent Trustee Trustee Powers and Deadlock Resolution +3 more

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Parties

Joy Ellen Campbell

Plaintiff

Michael Richard Eggink

Plaintiff

Antonie Hendrik Eggink

Plaintiff

Antonie Hendrik Eggink and Michael Richard Eggink (as partners in the Antonie Hendrik Eggink and Michael Richard Eggink Farm Partnership)

Second Plaintiffs

Ann Ellen (Ann) Eggink

Second Defendant / Life Tenant and Trustee

Ross (R) Dunlop

Trustee / Defendant

Procedural Posture

Trusts; Estate; Declaratory Relief; Trustee Act Application / Interim Judgment (consent Orders)

Legal Issues

  1. 1 Whether a trustee (Ann/Ann Ellen Eggink) should be removed and replaced by an independent trustee by consent under s 51 Trustee Act 1956 and the Court's supervisory jurisdiction
  2. 2 Whether the Court may confer on the replacement trustee binding powers to resolve deadlocks and to override co‑trustees where necessary to protect the life tenant and beneficiaries
  3. 3 Whether the life tenant (Ann) is indebted to the Antonie and Michael partnership in respect of advances for purchase/erection of a dwelling (declaration sought)

Ratio Decidendi

By consent the Court ordered the removal of Ann Ellen Eggink as trustee and appointed Wayne Seymour Chapman as independent trustee, conferring on him the usual powers of a trustee together with express, binding decision‑making powers to resolve deadlocks and to overrule co‑trustees where necessary to protect the life tenant and beneficiaries; the declaration claim as to indebtedness was adjourned and costs were reserved.

Court Disposition

Consent orders made: Ann Ellen Eggink removed as trustee and replaced by Wayne Seymour Chapman who is vested with usual trustee powers and specific binding powers to resolve disputes; second cause (declaration of indebtedness) adjourned; costs reserved.

Orders

  • Ann Ellen Eggink is removed as a trustee of the Estate of Hendrik Eggink and replaced by Wayne Seymour Chapman of Wellington, Solicitor.
  • Wayne Seymour Chapman is to have all usual powers of a trustee conferred by law and the terms of the will and, in addition, the powers to act as an independent trustee in the estate; to make binding decisions where the other trustees cannot agree; to overrule the other trustees if he considers their decision is not...