New Zealand Case Law: Decisions & Judgments

Topic

Section 51 trustee act 1956

Legal area

Court

4 Sept 2020

DANIEL v CUNDALL [2020] NZHC 2309

Citation

[2020] NZHC 2309
Court

High Court

Defendant Stephen Cundall was removed as trustee and Mr Livingstone appointed because his hostility, lack of cooperation and conflict of interest made removal necessary in the beneficiaries' interests; plaintiff Daniel was entitled to reimbursement from the trust under s 38(2) for expenses reasonably incurred (specified amounts) and defendant must pay plaintiff's party‑to‑party costs on a 2B basis plus disbursements, but defendant is not entitled to indemnification from the trust for his own costs.
10 Dec 2018

RE BRUNSKILL [2018] NZHC 3230

Citation

[2018] NZHC 3230
Court

High Court

Application granted under s 51(1) of the Trustee Act 1956: Denise Margaret Brunskill is appointed in substitution for Aileen Burr because Burr has lost capacity, the estate is cash only and distributions are non‑contentious, and the evidence supports the appointment; permission to commence the proceeding by originating application without notice is also granted.
24 Apr 2015

POWELL V POWELL CA546/2014 [2015] NZCA 133

Citation

[2015] NZAR 1886
Court

Court of Appeal

The appeal is dismissed; the Court upheld the High Court's exercise of discretion to remove the appellant as trustee and appoint an independent professional trustee while allowing the respondent Daniel to remain as co-trustee because the welfare of beneficiaries and the settlor's intentions, read in context, meant minimal necessary intervention was to replace only the appellant and because the respondent's past misconduct and the assault, considered in context and given his rehabilitation, did not make removal necessary to ensure proper administration.
18 Oct 2013

SMITH v PENNEY & ANOR [2013] NZHC 2727

Citation

[2013] NZHC 2727
Court

High Court

The Court exercised its statutory power under s 51 of the Trustee Act 1956 to remove the present trustees (unless they resigned within the specified short period) and to appoint two consenting and appropriate replacement trustees (Nole Ronald Irvine and Michael Charles Taylor), and ordered the present trustees to transfer all trust assets and records to the new trustees.
30 Aug 2010

RUSSELL V RUSSELL, PURU AND RAUMATI IN THEIR CAPACITY AS THE TRUSTEES IN THE ESTATE OF LEONARD RAUMATI, DECEASED HC AK CIV-2010-404-1178

Citation

openlaw-4ad8a838_2e90_4604_bb13_40db954bfd12.pdf
Court

Unknown Court

On the material before the Court the existing co-trustees were shown to be indifferent or unwilling to perform their duties, making it expedient under s51 Trustee Act 1956 and impracticable to effect replacement without court assistance; accordingly the Court appointed two independent, consenting professionals as replacement trustees.
28 Jul 2009

TULSI RAM NARESH V GORDON EDWARD MCCLUSKIE CA CA766/2008

Citation

openlaw-0be8f5af_5884_4b4d_9720_aef8fe5eade5.pdf
Court

Court of Appeal

The Court affirmed the High Court: the replacement litigation guardian appointment and admission of the unavailable guardian's brief were lawful; the appellant's own evidence and conduct showed repeated breaches of trustee duties, preference of personal interest over beneficiaries and lack of understanding/willingness to comply with the trust deed, making removal under s 51 necessary and expedient; the appellant repudiated a conditional settlement so the respondent was entitled to proceed; the appellant's conduct was sufficiently exceptional to justify indemnity costs on both the original pro…
19 Sept 2006

LAMA V ROSS HOPE, LAMA KARMA SHEDRUP, THELMA BURCHELL, ELLEN DUCKWORTH AS TRUSTEES OF THE NEW ZEALAND KARMA KAGYU TRUST SC 48/2006

Citation

SC 48/2006
Court

Supreme Court

Leave to appeal was refused because the first ground involved construction peculiar to the deed and not of general public importance, and the Court of Appeal's decision on s 51 was a correct application of well-established jurisdiction and did not improperly limit that jurisdiction.
7 Jun 2006

ROSS HOPE, LAMA KARMA SHEDRUP, THELMA BURCHELL, ELLEN DUCKWORTH AS TRUSTEES OF THE NEW ZEALAND KARMA KAGYU TRUST V KHYENTSE RINPOCHE LAMA CA CA51/05

Citation

openlaw-853e8b27_1c19_4318_a9a4_71ff3e401b11.pdf
Court

Court of Appeal

The Court held that r II(d)(vii) requires a specific authority from the Karmapa (or lawful successor) to advise that a board member is no longer suitable and thereby vacate office; a generic supervisory appointment under r XII(a) does not confer power to remove trustees under r II(d)(vii); accordingly the respondent's purported removals were ineffective, the High Court orders upholding them were quashed, and the appellants were reinstated; no replacement under s 51 was warranted.