THE MERTON TRUST HC AK CIV-2006-404-003327

THE MERTON TRUST HC AK CIV-2006-404-003327

The Court found it inexpedient to retain the Merton Cello because of its fragility, the insurance and storage costs and the risk of damage which materially impeded the trust's ability to pursue its other charitable objects; accordingly the Court had jurisdiction under ss32–35 Charitable Trusts Act 1957 to approve a...

Source-derived case information.

Citation
openlaw-25903d03_d38d_44b5_88d0_f203c89d4940.pdf
Parties
Applicant / Trustee Body: The Merton Trust; Settlor (deceased): Cyril O'Donel Merton; Appointor / Executor / Trustee: New Zealand Guardian Trust Company Limited; Appointor / Executor / Trustee: Brian Lynch; Interested Party / Reporter: Attorney-General
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 September 2006
Procedural Posture
Originating Application for Approval of Scheme Under the Charitable Trusts Act 1957 / Hearing and Oral Judgment on Application for Scheme Approval
Outcome
Scheme approved under s35(2) Charitable Trusts Act 1957 by Lang J
Legal Topics
Variation of Charitable Trust, Cy Pres Doctrine, Charitable Trusts Act 1957 Procedure, Trust Administration, Geographic Limitation of Charitable Objects
Charity Law Trusts Equity Property Law Variation of Charitable Trust Cy Pres Doctrine Charitable Trusts Act 1957 Procedure Trust Administration +1 more

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Parties

The Merton Trust

Applicant / Trustee Body

Cyril O'Donel Merton

Settlor (deceased)

New Zealand Guardian Trust Company Limited

Appointor / Executor / Trustee

Brian Lynch

Appointor / Executor / Trustee

Attorney-General

Interested Party / Reporter

Procedural Posture

Originating Application for Approval of Scheme Under the Charitable Trusts Act 1957 / Hearing and Oral Judgment on Application for Scheme Approval

Legal Issues

  1. 1 Whether it is impossible, impracticable or inexpedient to carry out the original trust purpose in relation to the Merton Cello
  2. 2 Whether s32 and s33 Charitable Trusts Act 1957 give jurisdiction to permit sale of the cello and variation of objects
  3. 3 Whether adding 'musicals and musical theatre' fits within cy-près and accords with settlor's intent

Ratio Decidendi

The Court found it inexpedient to retain the Merton Cello because of its fragility, the insurance and storage costs and the risk of damage which materially impeded the trust's ability to pursue its other charitable objects; accordingly the Court had jurisdiction under ss32–35 Charitable Trusts Act 1957 to approve a scheme permitting sale of the cello with proceeds applied to the remaining trust purposes, to extend the objects to include 'musicals and musical theatre' as a close fit to the settlor's intent given changed circumstances, and to refine the geographical area to a defined 10 km radius.

Court Disposition

Scheme approved under s35(2) Charitable Trusts Act 1957 by Lang J

Orders

  • Approval of the scheme on the terms of the draft orders filed 15 June 2006 under s35(2) Charitable Trusts Act 1957
  • Authority for the trustees to dispose of the Merton Cello by sale and to hold and apply the sale proceeds for the remaining objects of the Trust