17 Mar 2021
Leave to appeal was granted because the proposed grounds raised issues capable of bona fide and serious argument, the appeal may be dispositive between the parties, the merits and significance to Auto Net outweighed the delay and cost, and the interests of justice required the Court of Appeal to determine the issues concerning the nature of the trust and applicability of Saunders v Vautier.
22 Apr 2020
The Court declined the further extension because the appellant unjustifiably delayed after a prior extension that included a clear timetable and warning that non‑compliance would lead to abandonment; the applicant's reasons (awaiting disclosure and other applications, and claimed medical impairment) did not justify further delay and appeared to demonstrate no genuine intention to prosecute the appeal; costs were awarded for the repeat application.
3 Mar 2020
The applications were declined because the appellant has demonstrated through coherent, detailed filings that he understands the issues and is able to give sufficient instructions; he therefore does not meet the r 4.29 definition of an incapacitated person, the Court will not appoint counsel to act for a party in a civil appeal, and there is no justification for an indefinite adjournment given the judgment was delivered and implemented nearly a year earlier.
8 Mar 2019
The Court found the testamentary trust was validly created and acted upon by the named trustees; the plaintiffs satisfied the elements of Saunders v Vautier and therefore had the right to call for distribution; Mr Pool advanced no viable defence on the material filed and summary judgment was appropriate; Mr Pool was removed as trustee, The New Zealand Guardian Trust Company Ltd was appointed as replacement trustee and all trust property was vested in the continuing trustees; costs were awarded personally against Mr Pool on a 2B basis.
24 Aug 2018
The amended direction, having been executed by all parties with an actual or potential interest, lawfully falls within the rule in Saunders v Vautier and authorises termination of the trusts; the Court will grant a direction under s 66 Trustee Act 1956 requiring executors to distribute the estate accordingly. The executors are sufficiently protected by the court order and by indemnities from the three named beneficiaries, and therefore are not entitled to require an indemnity from Ms van Borm as a precondition to compliance.
17 Jul 2018
The plaintiff was entitled to the transfer of the bare trust share portfolio. A trustee may be indemnified from trust assets for reasonable expenses, but indemnity is limited where the trustee unreasonably withheld transfer after the beneficiary offered indemnities. It was reasonable for the trustee to incur limited legal costs (up to $5,000) to obtain advice and consider indemnities in late 2017; larger litigation costs were not reasonably incurred. The Court awarded reimbursement to the trustee of $5,000 from the trust and fixed the plaintiff's costs at $2,000, and ordered distribution of t…
13 Mar 2017
Clause 9.1 of the trust deed vests the trustees with an absolute and uncontrolled discretion to appoint a Vesting Day within the perpetuity period, and clause 9.2 provides for distribution on vesting; accordingly the trustee is authorised to advance the vesting day and distribute the entire trust capital to the sole beneficiary for its use, without needing to invoke s 64(1) or resettlement mechanisms.
29 Apr 2016
The Court was satisfied on the balance of probabilities that the 2008 document expressed the deceased's testamentary intentions and, given the statutory purpose of s14 and the residual nature of the discretion, there were no sufficient reasons to refuse validation; orders were made validating the 2008 document as the deceased's will.