2307843c-335e-48df-bd5b-6658707fdcd5.pdf

2307843c-335e-48df-bd5b-6658707fdcd5.pdf

Frank McAtamney, being the person vested by clause 9 with the statutory power of appointment, validly exercised that power in appointing John Duncan McFarlane on 27 March 2000 and Anne-Marie Allen on 30 December 2009; Margaret's concurrent signature was ineffective and did not invalidate Frank's exercise, therefore declaratory orders confirming validity were appropriate.

Citation
openlaw-2d1208d6_dcca_4fa1_90d7_607b4533f44c.pdf
Parties
First Plaintiff: FRANCIS STEVENS McATAMNEY; Second Plaintiff: JOHN DUNCAN McFARLANE; Third Plaintiff: ANNE-MARIE ALLEN; First Defendant: ANNE-MARIE ALLEN; Second Defendant: JONATHAN CHRISTOPHER ALLEN; Third Defendant: NATALIE ANNE MARGARET ALLEN; Fourth Defendant: STEPHEN FRANCIS McATAMNEY; Fifth Defendant: DANIEL FRANCIS McATAMNEY; Sixth Defendant: ANTHONY JOSHUA McATAMNEY; Seventh Defendant: MATTHEW STEPHEN McATAMNEY; Eighth Defendant: PAULINE MARGARET McATAMNEY; Ninth Defendant: ELIZABTH MARY McATAMNEY; Tenth Defendant: REBECCA MARGARET McATAMNEY; Eleventh Defendant: SAMUEL ROBERT JOHNSON; Twelfth Defendant: BRIDGET ELIZABETH JOHNSON; Thirteenth Defendant: CAROLYN TERESA AGNES McATAMNEY-RASCH; Fourteenth Defendant: SAVANNAH JESSICA McATAMNEY-RASCH; Fifteenth Defendant: ZETTLIN OLLIE FRANCIS McATAMNEY-RASCH
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 July 2020
Procedural Posture
Declaratory Judgment / Final Judgment (declaration Delivered)
Outcome
Declarations granted that the two appointments were valid and costs awarded against the trust
Legal Topics
Validity of Appointment of Trustees, Construction of Trust Deed, Statutory Power of Appointment, Declaratory Judgments Act 1908
Trusts Declaratory Relief Civil Procedure Validity of Appointment of Trustees Construction of Trust Deed Statutory Power of Appointment Declaratory Judgments Act 1908

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Parties

FRANCIS STEVENS McATAMNEY

First Plaintiff

JOHN DUNCAN McFARLANE

Second Plaintiff

ANNE-MARIE ALLEN

Third Plaintiff

ANNE-MARIE ALLEN

First Defendant

JONATHAN CHRISTOPHER ALLEN

Second Defendant

NATALIE ANNE MARGARET ALLEN

Third Defendant

STEPHEN FRANCIS McATAMNEY

Fourth Defendant

DANIEL FRANCIS McATAMNEY

Fifth Defendant

ANTHONY JOSHUA McATAMNEY

Sixth Defendant

MATTHEW STEPHEN McATAMNEY

Seventh Defendant

PAULINE MARGARET McATAMNEY

Eighth Defendant

ELIZABTH MARY McATAMNEY

Ninth Defendant

REBECCA MARGARET McATAMNEY

Tenth Defendant

SAMUEL ROBERT JOHNSON

Eleventh Defendant

BRIDGET ELIZABETH JOHNSON

Twelfth Defendant

CAROLYN TERESA AGNES McATAMNEY-RASCH

Thirteenth Defendant

SAVANNAH JESSICA McATAMNEY-RASCH

Fourteenth Defendant

ZETTLIN OLLIE FRANCIS McATAMNEY-RASCH

Fifteenth Defendant

Procedural Posture

Declaratory Judgment / Final Judgment (declaration Delivered)

Legal Issues

  1. 1 Whether the appointments dated 27 March 2000 and 30 December 2009 were valid where clause 9 vested the statutory power of appointment solely in Frank McAtamney
  2. 2 Whether Margaret McAtamney's purported co-exercise of the power invalidated the appointments
  3. 3 Whether the Court should exercise its discretion to grant declaratory relief under the Declaratory Judgments Act 1908

Ratio Decidendi

Frank McAtamney, being the person vested by clause 9 with the statutory power of appointment, validly exercised that power in appointing John Duncan McFarlane on 27 March 2000 and Anne-Marie Allen on 30 December 2009; Margaret's concurrent signature was ineffective and did not invalidate Frank's exercise, therefore declaratory orders confirming validity were appropriate.

Court Disposition

Declarations granted that the two appointments were valid and costs awarded against the trust

Orders

  • John Duncan McFarlane of Timaru, chartered accountant, was on 27 March 2000 validly appointed a trustee of the Waimarie Second Family Trust established by deed on 17 September 1997.
  • Anne-Marie Allen of Ashburton, farmer, was on 30 December 2009 validly appointed a trustee of the Waimarie Second Family Trust established by deed on 17 September 1997.