CDT 12 Limited v Millar

In the High Court of New Zealand, Napier Registry, CDT 12 Limited, as trustee of the Miller Ashurst Grandchildren’s Trust, applied for an order removing itself and Megan Jane Millar as trustees of the Trust and appointing New Zealand Guardian Trust Company Limited as the sole trustee, along with an order vesting the Trust’s assets in the New Zealand Guardian Trust Company Limited. The application was made under sections 51 and 52 of the Trustee Act 1956 and the Court’s inherent jurisdiction. The application was based on allegations that the present trustees were not validly appointed, Megan Millar had misappropriated Trust funds, and Megan Millar and a former validly appointed trustee had not cooperated to rectify the matter.

The legal issues the Court had to decide were whether the Court should follow the interpretation of the term “individuals” in a similar provision in Jasmine Trustees Ltd v Wells & Hind and, if so, whether the appointments of Megan Millar and Helen Millar were invalid and, in turn, whether CDT 12 Limited’s appointment was invalid. The Court was also required to decide whether the vesting of the Trust’s assets in the New Zealand Guardian Trust Company Limited was appropriate.

The Court was not persuaded that the term “individuals” in sections 43 and 45 of the Trustee Act excluded body corporates from that term. The Court was not persuaded that all Trust appointments from the time NITL appointed Helen and Megan Millar as new trustees were invalid. The Court accepted that it was expedient to appoint a new trustee or new trustees, and it was difficult or impracticable to do so without the assistance of the Court. The Court also accepted that the New Zealand Guardian Trust Company Limited should be appointed in the place of CDT, Megan Millar and the original trustees if they had not been validly replaced by CDT and Megan Millar.

The Court was satisfied it was appropriate to make the vesting order. The Court appointed New Zealand Guardian Trust Company Limited as the sole trustee of the Trust and made a vesting order in New Zealand Guardian Trust Company Limited in terms of the application. Costs on a 2B basis and disbursements were ordered and payable from the assets of the Trust.