New Zealand Case Law: Decisions & Judgments

Topic

Variation of trust deed

Legal area

Court

13 Sept 2023

RAKIHIA TAHUMATĀ TAU [2023] NZHC 2544

Citation

[2023] NZHC 2544
Court

High Court

The court has jurisdiction under ss122, 124 and 125 of the Trusts Act 2019 to approve the trustees' proposed amendment to clause 6.1 of the FEUT deed and to waive the requirement for unanimous beneficiary consent where the variation concerns timing only, does not reduce or remove any vested interest, and where affected beneficiaries and the Settlor support the change; leave to proceed by without-notice Originating Application is justified.
24 Aug 2023

RE THE JUBILEE CRIPPLED CHILDREN FOUNDATION TRUST BOARD [2023] NZHC 2318

Citation

[2023] NZHC 2318
Court

High Court

The Court has jurisdiction under s130 of the Trusts Act to vary trustees' appointment powers; the proposed variation vesting appointment power in the trustees is necessary and desirable for proper management, does not alter beneficiary interests or involve distribution, and interested persons were afforded an opportunity to be heard (advertised on the trust website); the Attorney-General does not oppose the application, therefore clause 6 is varied as proposed.
15 May 2023

K v K [2023] NZHC 1153

Citation

[2023] NZHC 1153
Court

High Court

The respondent was in breach of the prior order at [113(e)] by refusing to cooperate with marketing and failing to vacate; he was therefore an unlawful occupier. The Court ordered him to vacate the family home within 10 working days, granted trustees leave to apply for a Possession Order if he failed to comply, and awarded costs to the applicant on a 2B basis.
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.
4 Nov 2022

ad1150b0-93e5-46f7-a9b3-7ef25e230c5e.pdf

Citation

openlaw-885523ec_694a_4b80_8009_b59f17e5c0d5.pdf
Court

High Court

The Court concluded the proposed clauses authorising trustees to indemnify themselves and to purchase trustee liability insurance paid from trust funds would facilitate administration and the Trust's charitable purposes, align with the Trusts Act 2019 and established practice, and are therefore approved under s53 of the Charitable Trusts Act 1957.
24 Aug 2022

RE TREVOR WILSON TRUSTEE LIMITED [2022] NZHC 2118

Citation

[2022] NZHC 2118
Court

High Court

The Court approved the scheme under Part 3 of the Charitable Trusts Act 1957 because the strict geographic limitation made administration impracticable; the proposed amendments facilitate carrying out the trust, are charitable, and are as close as reasonably possible to the settlor's original purposes, thereby satisfying ss 32, 33 and 56(1)(a).
12 Aug 2022

SETTER, PEACOCK, MIDDELBERG, TOSWILL, GRAY, AVERY, AND WILLIAMS AS TRUSTEES OF CENTRAL HAWKES BAY CONSUMERS POWER TRUST v [2022] NZHC 1996

Citation

[2022] NZHC 1996
Court

High Court

The Court corrected the drafting slip because the proceeding was uncontentious, beneficiaries were represented and supported the correction, there was no opposition, and correction did not require further evidence; therefore the slip rule authorised amending sch 1 cl 2.18(c) to align voting eligibility with the increased number of trustees.
12 May 2022

RE THE NEW ZEALAND MEDICAL EDUCATION TRUST EX PARTE PERPETUAL TRUST LTD [2022] NZHC 996

Citation

[2022] NZHC 996
Court

High Court

The Court held the proposed scheme would facilitate administration of the charitable trust by replacing an impracticable Council with an Advisory Board and vesting decision-making power in the trustee; given Perpetual's experience and the modest corpus the continuation of Perpetual as sole trustee is appropriate provided an independent remuneration review mechanism is added; accordingly the scheme was approved with the specified modification.
17 Feb 2022

MOLLY RUBY v EILEEN RUBY, A B, C D, E F in their capacity as trustees of the A Ruby Trust [2022] NZHC 282

Citation

[2022] NZHC 282
Court

High Court

The Court exercised its statutory and inherent jurisdiction to approve the three variations because they were necessary and desirable for proper management and administration of the A Ruby Trust, facilitated a full and final family settlement, did not extinguish any vested beneficial interest, complied with the mandatory considerations in ss124 and 125 and the principles in s4, and therefore the specific variation orders sought were appropriate and were made on 17 February 2022.
20 Dec 2021

RE MACALISTER [2021] NZHC 3572

Citation

[2021] NZHC 3572
Court

High Court

Because all adult beneficiaries consented via the Deed of Settlement, the proposed variation (addition of clause 5.3) did not remove any vested interest of discretionary beneficiaries, the minor beneficiaries' interests were adequately represented by their parents, the trustees had power to sell under the deed and the orders were necessary and appropriate to implement a negotiated, interdependent settlement and wind up the trust, the Court exercised its discretion under s124 and s133 to approve the variation and direct the sale and distributions as stipulated in the Deed of Settlement.