New Zealand Case Law: Decisions & Judgments

Topic

Construction of trust deed

Legal area

Court

18 Oct 2023

RE PATIENT [2023] NZHC 2924

Citation

[2023] NZHC 2924
Court

High Court

Clause 3 of the deed is expressed to be paramount and its concluding paragraphs confer a broad power to apply income and, where appropriate, capital for any charitable purpose; clause 5 is advisory and does not fetter the trustee's power under clause 3; consequently the trustee has power to wind up the trust and distribute the fund to the three named recipients and the Court grants directions under s133 approving that distribution and charging costs to the trust.
6 Dec 2022

WILLIS v WADDELL [2022] NZHC 3248

Citation

[2022] NZHC 3248
Court

High Court

The deed's plain text, read in its documentary and factual context, demonstrates that the settlor intended the classes in clauses 2(e) and 2(g) to refer to the children and grandchildren of both Bill and Peg together and that the discretionary beneficiaries named (Christene and Michael) are the children contemplated; the court will not, on the evidence, depart from that plain meaning to include William who was not named and whose existence was not known to the settlor, protector or trustees; accordingly William is neither a discretionary nor a final beneficiary.
24 Nov 2022

MCKEEFRY & ORS as trustees of SCANPOWER CUSTOMER TRUST [2022] NZHC 3102

Citation

[2022] NZHC 3102
Court

High Court

Clause 15 of the Trust Deed authorises court amendment; the existing definition risked including retailers contrary to the Trust's manifest purpose to benefit end‑point consumers and to the separation imposed by the Electricity Industry Reform Act 1998; precedent supports court approval of such an amendment where lawful, made in good faith and not unreasonable; accordingly the Court granted the trustees' application to replace the definition of 'Customer' and 'the Customers' to align with the Trust's original purpose.
2 Jun 2021

LEGLER v FORMANNOIJ [2021] NZHC 1271

Citation

(2021) 5 NZTR 31
Court

High Court

The Kaahu deed expressly permitted a single corporate trustee and contained clause 27.2(c) allowing a corporate trustee to exercise powers even if it directly or indirectly benefited a beneficiary-director; the evidential matrix showed the appointor acted in good faith, sought an independent trustee, obtained legal advice, and did not appoint the corporate trustee for an improper purpose, therefore the appointment was not a fraud on a power and the claim fails.
22 Jul 2020

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

Citation

openlaw-2d1208d6_dcca_4fa1_90d7_607b4533f44c.pdf
Court

High Court

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.
28 Oct 2014

McCaw Lewis Trustees (No. 4) Limited [2014] NZHC 2627

Citation

[2014] NZHC 2627
Court

High Court

The court held that a reasonable and properly informed reader of the deed would construe "other public charitable institution" to include charitable trusts such as the Mahi-a-Ngakau Trust; there is no sustainable legal distinction in the deed between "public" and "private" charities sufficient to exclude a registered charitable trust, and therefore trustees are entitled to distribute income or capital to Mahi-a-Ngakau Trust.
21 Mar 2013

GREGORY NOEL RATHBUN, ALLAN MCKENZIE FRASER AND ANDREW MCKENZIE FRASER AS TRUSTEES OF THE BALFOUR TRUST HC AK CIV 2013-404-174

Citation

openlaw-f7d62d5d_b16a_43d6_bf58_1860821aa72d.pdf
Court

High Court

Where a trust deed authorises appointment of 'bodies' as discretionary beneficiaries and contains no clear prohibition on distributing income or capital to them, the Court will approve a s64A variation to confirm trustees may distribute to non‑natural discretionary beneficiaries where the variation benefits, and does not detrimentally affect, those lacking capacity; a s66 direction was unnecessary here.
14 Feb 2011

THE OFFICIAL ASSIGNEE IN BANKRUPTCY IN THE PROPERTY OF KEITH JAMES BAINBRIDGE V ANNIE CATHERINE MENZIES AND SIMON MIDDLETON PALMER AS TRUSTEES HC AK CIV-2010-404-005457

Citation

openlaw-2a726599_57d5_4789_9890_db25cefca238.pdf
Court

Unknown Court

The Official Assignee demonstrated an arguable proprietary interest in the form of an equitable lien and right of indemnity arising from Bainbridge's trusteeship, that lien survived resignation and vested in the Official Assignee on bankruptcy under s42, the lien is a caveatable interest under s137 LTA, and the caveat should be sustained pending substantive determination.
27 Aug 2009

MUNRO AND ANOR V PERPETUAL TRUST LIMITED AND ANOR HC CHCH CIV-2009-409-001463

Citation

openlaw-65a1a7c8_e595_46b3_b91e_10d8f5c26233.pdf
Court

High Court

The court held that the trustee's notice of enforcement combined with trust deed clause 8.06(f) operated as the trustee requiring payment to it; the proviso to condition 3 was therefore triggered so condition 3 did not apply to prevent interest running after acceleration. Consequently interest accrues after appointment of receivers until full repayment and individual production of stock certificates is not a prerequisite for liability.
31 Jul 2009

FINLAYSON & ORS V YOUNG & ORS HC WN CIV-2009-485-717

Citation

openlaw-9777c331_18d2_47da_af90_4420cdd80e3b.pdf
Court

High Court

The application for pre-emptive or indemnity costs and for an advance/distribution from the Trust is refused because the dispute is private hostile trust litigation (not public interest) and established authorities require costs to normally follow the event; the thresholds for exceptional pre-emptive relief are not met and nothing compels the trial judge to order costs out of the fund at this stage.