28 Feb 2023
Because the settlor had clear power under cl 3.2 to remove the trustee and had done so, and the respondent was uncontactable and had effectively abandoned her trustee role, the Court properly dispensed with service and granted a vesting order vesting title in the remaining trustees; recourse to s112 was unnecessary.
10 Aug 2022
On an objective contextual construction the words "the children of the Settlors" include the persons who were part of the settlors' family unit at the time the No. 2 Trust was settled; therefore Robert William Cooper and his issue are beneficiaries under the trust deed, but Raymond Moody, who was not raised as their child, is not a beneficiary.
6 Dec 2021
Costs of the Beddoe application are to be determined now. The Trustee acted reasonably in seeking a Beddoe order as to the first cause of action so 60% of the claimed scale costs ($14,124.90 excl GST) plus disbursements of $5,200.00 are to be paid from Trust funds. The Trustee did not act reasonably in seeking indemnity for the second cause of action (challenge to validity of appointment and related declarations/counterclaim) and those costs are not indemnified. Ms Vincent acted reasonably opposing the Beddoe application and her claimed costs of $20,503.71 (GST inclusive) are to be met from T…
27 Aug 2021
The court refused the broad tailored discovery sought as disproportionate and insufficiently tethered to the narrow issue to be decided (the meaning of 'contributions' in cl 2.5(3)). Instead the court ordered standard discovery from the parties (Ms Ryan, Mr Lobb, Lockhart) by affidavit of documents within 28 days and ordered Public Trust to file a particular affidavit of documents within 28 days limited to documents concerning formation and administration of the Trust, including documents relevant to acquisition of trust assets and contributions to acquisition, maintenance, development or imp…
9 Aug 2021
Recall dismissed: the judgment sufficiently addressed the pleaded issues. The court held the lease was invalid to the extent it conflicted with the Thorburn Trust deed and that granting specific performance would frustrate the trust's charitable purpose; that conclusion precluded any entitlement to damages for breach of contract or the need for the interpretative declarations sought. The absence of explicit usage of the words 'damages' or 'declaration' did not amount to a failure to determine issues and did not satisfy the high threshold for recall under r 11.9.
20 Nov 2020
The arbitration provisions in clauses 2.5(5) and 3.7 were not a binding arbitration agreement that could oust the Court's jurisdiction because (a) the trustees had been removed leaving no trustees between whom the clause operated, and (b) discretionary beneficiaries (including the parties' children and potential future beneficiaries) could not be treated as having agreed to be bound by arbitration; accordingly the Court retained jurisdiction to determine the declaratory issue and Mr Lobb's application to dismiss or stay was refused; the application for return of documents was refused as outsi…
2 Dec 2019
The defendant's adjudication as a bankrupt disqualified him from continuing as a trustee under the trust deed and for the purposes of s52 Trustee Act 1956, and because he failed to execute transfer documents the Court was entitled to and did make a vesting order under s52 vesting the Seaforth Avenue property in the remaining trustees (the plaintiffs).
22 May 2019
The trustees' purported annual reservations from 1994 to 2008 were invalid because they were not made unanimously and trustee Thomson failed to exercise an independent discretion, being fettered by the settlor's overriding intention; as a result the residue of net annual income vested in the income beneficiaries on each balance date (including proceeds of Wye Creek and a 2007 dividend), certain vested income was traceable into SLH and SLH unconscionably received that income; limitation did not bar the successful plaintiffs (except one) because the fraud/concealment concealed the causes of act…
1 Oct 2018
Transactions 1–3 were Major Transactions under the Settlement Trust deed and required approval by Special Resolution; s 64 could not be used to retrospectively authorise them because the deed contained an express contrary intention requiring member approval; s 66 relief in the form sought (doing nothing or merely informing beneficiaries) was inadequate, and the Court directed trustees to seek approval by Special Resolution in accordance with the deed.
31 Jul 2018
Mr Casey has no present caveatable beneficial interest in the Paremoremo property because as trustee he holds only legal title and he is not a beneficiary; clauses 30 and 31 do not create an immediate beneficial entitlement to non‑beneficiaries and therefore do not support a s42 notice; even if clause 31 were interpreted to give a present interest to a settlor such an interest would be relationship property but the applicant's rights are adequately protected by enforceable trust remedies so the s42 notice is not reasonably required and must be removed.