ESPIE v ESPIE [2016] NZHC 2045

ESPIE v ESPIE [2016] NZHC 2045

The first defendant's prolonged failure to engage, his inaction in addressing rates, insurance and necessary repairs, and his failure to take any step after service of proceedings constituted misconduct or rendered continued trusteeship impracticable; given the urgent need to preserve the sole trust asset and the applicant's suitability, the Court removed the first defendant under s 51(2)(a) and appointed the applicant as substituted trustee under s 51(1), exercising statutory and inherent jurisdiction to protect beneficiaries' welfare.

Citation
[2016] NZHC 2045
Parties
Plaintiff: Robin Grey Espie; First Defendant: Peter Ross Espie; Second Defendant: Alexander James Jeremy Glasgow
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 August 2016
Procedural Posture
Trustee Act Proceedings Removal and Substitution of Trustee / Final Judgment
Outcome
First defendant removed as trustee; plaintiff appointed as substituted trustee
Legal Topics
Removal of Trustee, Breach of Trust, Appointment of Trustee, Trust Administration, Order for Sale
Trusts Equity Property Law Civil Procedure Removal of Trustee Breach of Trust Appointment of Trustee Trust Administration +1 more

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Parties

Robin Grey Espie

Plaintiff

Peter Ross Espie

First Defendant

Alexander James Jeremy Glasgow

Second Defendant

Procedural Posture

Trustee Act Proceedings Removal and Substitution of Trustee / Final Judgment

Legal Issues

  1. 1 Whether the first defendant's inaction and failure to engage constitute misconduct in administration under s 51(2)(a) Trustee Act 1956
  2. 2 Whether it is expedient and practicable for the Court to appoint a substituted trustee under s 51(1) Trustee Act 1956
  3. 3 Whether the Court may exercise inherent jurisdiction alongside statutory power to remove a trustee to protect beneficiaries' welfare

Ratio Decidendi

The first defendant's prolonged failure to engage, his inaction in addressing rates, insurance and necessary repairs, and his failure to take any step after service of proceedings constituted misconduct or rendered continued trusteeship impracticable; given the urgent need to preserve the sole trust asset and the applicant's suitability, the Court removed the first defendant under s 51(2)(a) and appointed the applicant as substituted trustee under s 51(1), exercising statutory and inherent jurisdiction to protect beneficiaries' welfare.

Court Disposition

First defendant removed as trustee; plaintiff appointed as substituted trustee

Orders

  • Pursuant to s 51(1) and s 51(2)(a) Trustee Act 1956 and the Court's inherent jurisdiction, the first defendant Peter Ross Espie is removed as trustee of the Espie Family Trust
  • Pursuant to s 51(1) Trustee Act 1956 the plaintiff Robin Grey Espie is appointed as trustee of the Espie Family Trust in substitution for the first defendant