In the Matter of PETER JOHN CRAIG [2019] NZHC 2386

In the Matter of PETER JOHN CRAIG [2019] NZHC 2386

The Court approved the ten‑year postponement under s64A because the variation was in the best interests of the potential minor beneficiaries, avoided penal tax consequences from a deemed distribution, had the consent of adult beneficiaries, did not unfairly conflict with the settlor's intent given unforeseen zoning/tax circumstances, and there was no prejudice from granting relief without notice or appointing litigation guardians.

Citation
[2019] NZHC 2386
Parties
Plaintiff / Trustee / Applicant: Peter John Craig; Plaintiff / Trustee / Applicant: James Colingordon Cochrane; Trust / Interested Party: JC Johnson Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 September 2019
Procedural Posture
Trust Variation Under S 64 a Trustee Act 1956 / Without‑notice Application for Court Approval and Ancillary Directions
Outcome
Application granted
Legal Topics
Variation of Trust, Section 64 a Trustee Act 1956, Postponement of Distribution Date, Without‑notice Relief, Litigation Guardian Dispensed
Trusts Property Law Taxation Civil Procedure Variation of Trust Section 64 a Trustee Act 1956 Postponement of Distribution Date Without‑notice Relief +1 more

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Parties

Peter John Craig

Plaintiff / Trustee / Applicant

James Colingordon Cochrane

Plaintiff / Trustee / Applicant

JC Johnson Family Trust

Trust / Interested Party

Procedural Posture

Trust Variation Under S 64 a Trustee Act 1956 / Without‑notice Application for Court Approval and Ancillary Directions

Legal Issues

  1. 1 Whether the Court should approve on behalf of incapacitous or potential beneficiaries a 10‑year postponement of distribution under s64A
  2. 2 Whether without‑notice orders dispensing service and avoiding appointment of litigation guardians are appropriate
  3. 3 Whether the proposed variation conflicts with settlor intent or is in beneficiaries' interests given tax consequences

Ratio Decidendi

The Court approved the ten‑year postponement under s64A because the variation was in the best interests of the potential minor beneficiaries, avoided penal tax consequences from a deemed distribution, had the consent of adult beneficiaries, did not unfairly conflict with the settlor's intent given unforeseen zoning/tax circumstances, and there was no prejudice from granting relief without notice or appointing litigation guardians.

Court Disposition

Application granted

Orders

  • Leave to commence proceeding by originating application granted on a without‑notice basis
  • Service of the proceeding on any party dispensed with