RE BARRACLOUGH [2017] NZHC 2547

RE BARRACLOUGH [2017] NZHC 2547

The Court ordered the Public Trust appointed as replacement trustee and discharged the applicant because the co‑powerholder (Mrs Kenrick) had not been given proper notice of the alternative proposal to appoint Mr Thompson; the applicant was entitled to a prompt discharge without further delay or cost; the applicant's actual costs to date of $4,138.76 were approved and further reasonable costs to hearing, sealing and specified steps were to be provided to Mr Slater's solicitors for approval or objection with disputes to be determined by the Registrar.

Citation
[2017] NZHC 2547
Parties
Applicant / Retiring Trustee: John Charles Reginald Barraclough; Powerholder With Appointment Right: Susan M Kenrick; Respondent / Opposing Party: Brett M Slater; Proposed Replacement Trustee: Public Trust; Proposed Replacement Trustee (consent Produced): Kim Scott Thompson
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 October 2017
Procedural Posture
Application Under S 46 Trustee Act 1956 (retirement of Trustee and Appointment of Replacement) / Hearing and Judgment (application Determined)
Outcome
Application granted in part: applicant discharged and released from liability; Public Trust appointed as replacement trustee; costs approved.
Legal Topics
Retirement of Trustee, Appointment of Trustee, Powers of Appointment, Service and Notice, Costs
Trusts Civil Procedure Equity Retirement of Trustee Appointment of Trustee Powers of Appointment Service and Notice Costs

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 1 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

John Charles Reginald Barraclough

Applicant / Retiring Trustee

Susan M Kenrick

Powerholder With Appointment Right

Brett M Slater

Respondent / Opposing Party

Public Trust

Proposed Replacement Trustee

Kim Scott Thompson

Proposed Replacement Trustee (consent Produced)

Procedural Posture

Application Under S 46 Trustee Act 1956 (retirement of Trustee and Appointment of Replacement) / Hearing and Judgment (application Determined)

Legal Issues

  1. 1 Whether the applicant should be discharged as trustee and from liability in respect of the Kenrick and Slater Business Trust and the Kenrick and Slater Family Trust
  2. 2 Whether the Public Trust should be appointed as replacement trustee
  3. 3 Whether Kim Scott Thompson may be appointed as replacement trustee without proper notice to the co-powerholder (Mrs Kenrick)

Ratio Decidendi

The Court ordered the Public Trust appointed as replacement trustee and discharged the applicant because the co‑powerholder (Mrs Kenrick) had not been given proper notice of the alternative proposal to appoint Mr Thompson; the applicant was entitled to a prompt discharge without further delay or cost; the applicant's actual costs to date of $4,138.76 were approved and further reasonable costs to hearing, sealing and specified steps were to be provided to Mr Slater's solicitors for approval or objection with disputes to be determined by the Registrar.

Court Disposition

Application granted in part: applicant discharged and released from liability; Public Trust appointed as replacement trustee; costs approved.

Orders

  • Applicant John Charles Reginald Barraclough discharged as trustee of the Kenrick and Slater Business Trust and the Kenrick and Slater Family Trust and released from liability in respect of those trusts
  • Public Trust appointed as trustee of the Kenrick and Slater Business Trust and the Kenrick and Slater Family Trust