The New Zealand Institute for Cancer Research Trust [2020] NZHC 2600
The Court approved the amended deed because the deletion of the winding-up provision, explicit limits on amendment powers to prevent exhaustion of assets, and the imposition of a five per cent annual cap on capital application addressed the Court's and Attorney-General's concerns, and the Attorney-General reported...
Source-derived case information.
- Citation
- [2020] NZHC 2600
- Parties
- Applicant: The New Zealand Institute for Cancer Research Trust
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 2 October 2020
- Procedural Posture
- Part 3, Charitable Trusts Act 1957 Application / Judgment Approving Amended Trust Deed
- Outcome
- Scheme and amended trust deed approved and order made
- Legal Topics
- Scheme Approval, Amendment of Trust Deed, Restriction on Capital Application, Attorney General Report
Source-derived case record
Summary, issues, holding and outcome
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Parties
The New Zealand Institute for Cancer Research Trust
Applicant
Procedural Posture
Part 3, Charitable Trusts Act 1957 Application / Judgment Approving Amended Trust Deed
Legal Issues
- 1 Whether the Court should approve the proposed scheme and amended trust deed under Part 3 of the Charitable Trusts Act 1957
- 2 Whether clauses permitting winding up or exhausting trust capital are permissible
- 3 Whether limits on amendment powers and a cap on capital application to five per cent per year sufficiently protect trust assets
Ratio Decidendi
The Court approved the amended deed because the deletion of the winding-up provision, explicit limits on amendment powers to prevent exhaustion of assets, and the imposition of a five per cent annual cap on capital application addressed the Court's and Attorney-General's concerns, and the Attorney-General reported the scheme and deed were proper and could be approved.
Court Disposition
Scheme and amended trust deed approved and order made
Orders
- Approve the scheme as set out in the proposed deed accompanying the memorandum dated 25 September 2020 and make orders in terms of the draft submitted by counsel
Full Case Text
Judgment text and source record
1 paragraphs
The New Zealand Institute for Cancer Research Trust [2020] NZHC 2600 [2 October 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECIV-2020-412-000018[2020] NZHC 2600BETWEEN THE NEW ZEALAND INSTITUTE FORCANCER RESEARCH TRUSTApplicantHearing: On the papersCounsel: J W Cowan for the ApplicantJudgment: 2 October 2020JUDGMENT OF NATION J[1] In March 2020 the Trust filed an application under Part 3, Charitable TrustsAct 1957 for approval of a scheme in respect of a Trust created by deed.[2] In a judgment of 13 August 2020, I approved the amended charitable purposesought by the Trust but declined approval in relation to three clauses in the proposedamended deed.1 In broad terms, the amendments would have permitted the trustee towind up the Trust or to bring it to an end through exhausting the capital in the Trust.The particular amendments were not supported by the Attorney-General.[3] In that judgment, I reserved leave to the trustee to make a further applicationfor approval of amended clauses that might meet the concerns raised in relation to thethree particular clauses.1 The New Zealand Institute for Cancer Research [2020] NZHC 2048.[4] The Court's concerns have been addressed in a new proposed trust deed forwhich the Trust seeks approval.[5] The clause providing for the trustee to wind up the Trust is to be deleted. Thepower to amend the terms of the trust deed is specifically limited so as to ensure theTrust assets cannot be exhausted. There can be no amendment which would allow theTrust to limit the payment of capital to more than five per cent a year.[6] The amended trust deed will permit the trustee to apply capital for the purposesof the Trust but any payment or application of capital in any financial year is to belimited to five per cent of the value of the Trust assets on the balance date immediatelyprior to the date of the payment or application of capital.[7] The proposed amendments have been submitted to the Attorney-General. TheCourt has a report confirming the Attorney-General is satisfied the scheme and thedeed with the proposed amendments are proper and can be approved by the Court.[8] The Court accordingly approves the scheme as set out in the proposed deedaccompanying the memorandum of counsel for the applicant dated 25 September2020, and makes an order in terms of the draft submitted by counsel to the Court.Solicitors:Anderson Lloyd, DunedinCrown Law, Wellington.