New Zealand Case Law: Decisions & Judgments

Topic

Declaration of trust

Legal area

Court

3 May 2023

LIEVEN v GRIEVE [2023] NZHC 1034

Citation

[2023] NZHC 1034
Court

High Court

The court concluded it could not find a breach or failure to keep accounts on the evidence because key records were inaccessible and that absence was at least partly caused by the plaintiff; however the trustee nonetheless has a duty to account and, to establish liability, the court ordered a structured process (access to records, 60 days to reconcile, reciprocal supported accounting) under Part 16 rather than determining breach on the incomplete record.
27 Jul 2022

SWIFT v GRAY [2022] NZHC 1794

Citation

[2022] NZHC 1794
Court

High Court

The decisive legal conclusion was that both causes of action depended on the same core factual issue — whether Brian intended in 2012 to create a trust for the plaintiff — such that the first and second defendants share a community of interest in the subject matter for r 1.20(2) purposes; accordingly there was no disqualifying conflict and Robertsons may continue to act for both defendants without court leave.
15 Jul 2021

MO v YANG [2021] NZHC 1792

Citation

[2021] NZHC 1792
Court

High Court

The court found no enforceable, certain oral contracts for the disputed investment arrangements across the projects because material terms were uncertain and undocumented; where funds were acknowledged received the appropriate remedy was restitution (money had and received) with statutory interest rather than proprietary or contractual remedies; trusts were declared only where the factual matrix showed nominees held title on trust (Union Road, Taurima, Bawden limited findings) and conditional transfer or distribution orders were made accordingly.
13 Mar 2020

LOW v DU [2020] NZHC 513

Citation

[2020] NZHC 513
Court

High Court

The court found the plaintiff entitled in principle to a vesting order under s 52(1)(g) but declined to make an unconditional transfer because the defendant has arguable defences (equitable estoppel and a claim for remuneration/indemnity). The court ordered that a vesting order will be made only once protections are in place for the trustee: an indemnity deed and monies set aside to meet proven expenses and a liberal fund to meet remuneration, because equity requires the plaintiff to do equity before obtaining relief.
4 Oct 2019

KEELEY v THE CROWN [2019] NZHC 2533

Citation

[2019] NZHC 2533
Court

High Court

On the evidence the Court inferred that the company held the property on trust for Hector Keeley (notwithstanding a director's misleading declaration), the Crown did not oppose vesting, and consequently a vesting order should be made under s 52(1)(h) of the Trustee Act 1956 to vest the property in the applicants.
23 Nov 2018

TONY & STEFANIE TRUSTEE LIMITED v STEFANIE TRUSTEE LIMITED [2018] NZHC 3046

Citation

[2018] NZHC 3046
Court

High Court

The Deed of Resettlement was invalid as a fraud on a power because its dominant purpose was to confer a beneficial interest and control on Mr Young (a non-object) rather than to benefit the named beneficiaries of the Stephanie Laird Family Trust; consequently the sale proceeds remain held for the Stephanie Laird Family Trust; the 2008 Deed of Acknowledgement of Debt is valid and obliges the trustee to pay Mr Young half of the capital profit as calculated by the trust's chartered accountant; the counterclaim alleging misappropriation was dismissed.
28 Oct 2016

OOI v TING [2016] NZHC 2583

Citation

[2016] NZHC 2583
Court

High Court

The Declaration of Trust proved that the defendant held his registered interest on trust for the plaintiff and breached that trust by refusing to transfer; accordingly, pursuant to s 52(1)(g) Trustee Act 1956 the Court vested the defendant's right, title and interest absolutely in the plaintiff and authorised the Registrar to record the transfer; indemnity costs were awarded against the defendant for his conduct.
28 Jun 2016

BARRETT & ORS v SOUTHEE & ANOR [2016] NZHC 1461

Citation

[2016] NZHC 1461
Court

High Court

Because the Trust Deed validly removed the first defendant as trustee and vested the Appointor with authority to effect transfer and to sign on behalf of a removed trustee, because the life policy is a trust asset held for the beneficiaries, and because the first defendant failed to file a defence or establish a miscarriage of justice after valid substituted service, the Court entered judgment by formal proof and ordered that she execute required transfer documents or that the Appointor be authorised to sign on her behalf; the insurer is restrained from paying without plaintiffs' written agre…
11 May 2016

Ooi v Ting [2016] NZHC 952

Citation

[2016] NZHC 952
Court

High Court

Leave to defend granted because the defendant's non est factum plea combined with his language limitations created a real possibility of miscarriage of justice if default judgment were entered; leave granted on strict, enforceable terms (timelines for pleading and disclosure, penalties for non-compliance including automatic judgment) and indemnity costs awarded for defendant's prior defaults with quantum reserved for later determination.
10 May 2016

KAIRMORE CONSTRUCTION LIMITED (in liq) v WICHMAN [2016] NZHC 936

Citation

[2016] NZHC 936
Court

High Court

Documentary evidence established the plaintiff paid deposits and settlement monies for the three properties, the defendants gave no consideration and did not file any evidence to rebut the presumption of resulting trust; accordingly the defendants hold the properties on resulting trust for the plaintiff, must execute transfer documentation within 28 days, and in default the properties will vest in the plaintiff under s52 Trustee Act 1956; costs awarded to the plaintiff.