Application by Cottingham to appoint trustees [2020] NZHC 1094

Application by Cottingham to appoint trustees [2020] NZHC 1094

Section 51 jurisdiction was established because there were no valid trustees and the trust deed vested appointment power in a board that could no longer act; the Court therefore appointed Messrs Bish, Hoole and Meltzer as trustees as it was expedient and necessary to enable urgent remedial and regulatory action, and under s 49 appointed the applicants as advisory trustees because there was no disputatious background and the proposed advisory appointments would aid rather than impede administration.

Citation
[2020] NZHC 1094
Parties
Applicant: Phillip Neil Cottingham; Applicant: Jennifer Margaret Cottingham; Applicant: Glenn Joseph Wilcox; Applicant: Paul Garth Butler; Trust: Prema Charitable Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 May 2020
Procedural Posture
Originating Application Under Part 19 High Court Rules 2016 and Sections 49, 51 and 52 of the Trustees Act 1956 / Judgment on the Papers
Outcome
Application allowed; trustees and advisory trustees appointed; costs to be paid from trust assets.
Legal Topics
Appointment of Trustees, Advisory Trustees, Court Supervision of Trusts, Trust Administration
Trusts Equity Insolvency Administrative Law Appointment of Trustees Advisory Trustees Court Supervision of Trusts Trust Administration

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Parties

Phillip Neil Cottingham

Applicant

Jennifer Margaret Cottingham

Applicant

Glenn Joseph Wilcox

Applicant

Paul Garth Butler

Applicant

Prema Charitable Trust

Trust

Procedural Posture

Originating Application Under Part 19 High Court Rules 2016 and Sections 49, 51 and 52 of the Trustees Act 1956 / Judgment on the Papers

Legal Issues

  1. 1 Whether the Court should appoint new trustees under s 51 of the Trustees Act 1956 when there are no existing valid trustees
  2. 2 Whether advisory trustees may be appointed under s 49 of the Trustees Act 1956
  3. 3 Whether the proposed appointees are suitable given urgent administrative and regulatory issues

Ratio Decidendi

Section 51 jurisdiction was established because there were no valid trustees and the trust deed vested appointment power in a board that could no longer act; the Court therefore appointed Messrs Bish, Hoole and Meltzer as trustees as it was expedient and necessary to enable urgent remedial and regulatory action, and under s 49 appointed the applicants as advisory trustees because there was no disputatious background and the proposed advisory appointments would aid rather than impede administration.

Court Disposition

Application allowed; trustees and advisory trustees appointed; costs to be paid from trust assets.

Orders

  • Appointing Clive Robert Bish, Gareth Russell Hoole and Jeffery Phillip Meltzer as trustees of the Prema Charitable Trust.
  • Appointing Phillip Neil Cottingham, Jennifer Margaret Cottingham, Glenn Joseph Wilcox and Dr Paul Garth Butler as advisory trustees to the Prema Charitable Trust.