New Zealand Case Law: Decisions & Judgments

Topic

Express trust

Legal area

Court

26 May 2023

HEMARA v LOWE [2023] NZHC 1253

Citation

[2023] NZHC 1253
Court

High Court

The plaintiff's unchallenged affidavit evidence established that the property was transferred to Ms Lowe as trustee for the children and their whanau; the 2009 transfer constituted part performance of the oral trust agreement, overcoming the statutory writing requirement, and Ms Lowe's subsequent mortgage and attempted sale were breaches of that trust; accordingly a declaration and vesting order in favour of two named children as trustees to hold for descendants was appropriate.
2 Mar 2023

MCNAUGHTON v MCNAUGHTON [2022] NZHC 376

Citation

MCNAUGHTON v MCNAUGHTON [2022] NZHC 376
Court

High Court

Summary judgment was refused because the applicant failed to discharge the burden of proving there was no defence: contemporaneous material was ambiguous, pleadings were defective, critical evidence was in dispute and contested, third‑party evidence was lacking or inadmissible, and the factual matrix requires discovery, oral testimony and trial determination; therefore the matter must proceed to trial.
27 Feb 2023

NEW WORLD (NEW ZEALAND) LIMITED v WANG [2023] NZCA 35

Citation

[2023] NZCA 35
Court

Court of Appeal

On payment of $70,000 the Deed created an express trust such that Ms Zhang held legal title purely as trustee and Ms Wang acquired the entire beneficial interest; vesting of the beneficial interest was not conditional on calling for transfer of legal title, so the High Court correctly excluded the property from the charging order.
1 Aug 2022

SYAS LTD v SOUNDARARAJAN [2022] NZHC 1872

Citation

[2022] NZHC 1872
Court

High Court

The caveator established a reasonably arguable beneficial interest under the Deed of bare trust and it was not patently clear that the 30 May 2021 email terminated that trust interest; accordingly the caveat must be preserved pending substantive proceedings.
30 May 2022

RE STA TRAVEL (NZ) LTD (IN LIQ) [2022] NZHC 1398

Citation

[2022] NZHC 1398
Court

High Court

The court inferred an express trust: refund monies received by STA Travel from airlines were held on trust for the particular customers for whom they were paid; no institutional constructive trust arose because refunds were not paid into the wrong hands nor paid by mistake and STA Travel was entitled to receive the monies as agent; liquidators may deduct their reasonable fees and disbursements from the refund monies to the extent those costs are not covered by the CTRS; leave reserved for further application regarding reimbursements to banks/financial institutions in charge‑back cases.
27 May 2022

WEA v McQUOID [2022] NZHC 1205

Citation

[2022] NZHC 1205
Court

High Court

The applicant produced a signed deed dated 7 June 2007 and contemporaneous evidence of mortgage payments by the applicant and his late partner, which together established a reasonably arguable case that the respondent holds a two‑thirds share on trust for the applicant; that arguable beneficial interest is sufficient to support the caveat and, in the exercise of the Court's discretion, the caveat should not lapse.
25 Mar 2022

INTECH INC v ANURA LIMITED [2022] NZHC 574

Citation

[2022] NZHC 574
Court

High Court

Although the Court found there is a serious issue to be tried as to whether an assignment of the S25 intellectual property was agreed, the plaintiffs' interim relief application is dismissed. For the S65 and S80/S95 projects the defendants had provided electronic files and gave undertakings and the plaintiffs' discovery demands were disproportionate; for the S25 there was insufficient contemporaneous documentary evidence of an IP assignment or basis for a notional royalty and the balance of convenience and overall justice did not favor granting the interim relief sought. Accordingly interim p…
17 Feb 2022

SCHMIDT v THE LEGAL SERVICES COMMISSIONER [2022] NZHC 200

Citation

[2022] NZHC 200
Court

High Court

The High Court dismissed the appeal: the Tribunal correctly upheld the Commissioner's refusal to fund the proposed appeal because Venning J's credibility findings, including that a central deed was fabricated, together with the contemporaneous documentary record, supported the conclusion that the transfers were outright sales and that claims of express trust, institutional constructive trust or fiduciary duty lacked sufficient prospects of success to justify appellate legal aid; the Tribunal's review was not wrong in law or manifestly unreasonable.
14 Apr 2021

SAIN v JOSEPH ERCEG [2021] NZHC 761

Citation

[2021] NZHC 761
Court

High Court

Summary judgment and strike‑out were inappropriate because the plaintiff's oral trust claim, though weak, was arguable and genuine factual and legal disputes remained that required full hearing and disclosure: the caveat ruling was interlocutory and did not estop full litigation; limitation did not bar the beneficiary's claim under Limitation Act 1950 s21(1)(b) (preserved by Limitation Act 2010 savings) and the question whether the statutory writing requirement is defeated by equitable fraud principles requires trial; laches could not fairly be determined without plaintiff evidence; pleadings…
10 Feb 2021

S A MORRISON and THE AUDAINE TRUST TRUSTEES LTD v AUTUMNAL INVESTMENTS LTD [2021] NZHC 117

Citation

[2021] NZHC 117
Court

High Court

Costs awarded to the plaintiffs on a category 2 band B basis. Requests to recategorise parts of the work to category 3 were rejected. Specific time allocations were adjusted (total recoverable time 42.3 days at $2,390 per day = $101,097) then reduced by 10% under r 14.7(d) to reflect additional costs caused by pursuing an express trust cause of action that was abandoned, yielding recoverable costs $90,987.30; disbursements $6,971 and expert fees $17,868.13 were allowed, producing a total award of $115,826.43. Forensic inspection disbursement of $1,397.25 was allowable.