Fenner (JW Sibson Trust)

[2014] NZHC 2564

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-002501 [2014] NZHC 2564

UNDER

the Charitable Trusts Act 1957

IN THE MATTER OF

the JOAN WINIFRED SIBSON TRUST (CC26611), a Charitable Trust created by Deed dated 1 February 1967

BETWEEN

BRADLEY THOMAS FENNER, DAVID CLUTHA GORDON BRIDGES and

PAUL LEONARD PALMER CHAPMAN Applicants

Hearing:	20 October 2014
Counsel:	J S Caen for the Applicants
Judgment:	20 October 2014

(ORAL) JUDGMENT OF DUFFY J

Solicitors:    Simpson Grierson, Auckland

Copy To:     Crown Law, Wellington

FENNER and ORS (J W SIBSON TRUST) [2014] NZHC 2564 [20 October 2014]

[1]      This is an application under part 3 of the Charitable Trusts Act 1957.  The trustees seek to delete clause 3 of the trust deed of the Joan Winifred Sibson Trust (“the trust deed”), dated 1 February 1967.   They seek this deletion to expand the investment powers of the trust to reflect the modern day approach to trustee investment.

[2]      The Attorney-General has provided a report.  In short, my understanding of the Attorney-General’s position is that the trustees do not need to have the trust deed amended, that there is existing law already, which would enable them to make the investments they now seek to make.

[3]      Nonetheless,  I  have  some  sympathy  with  the  trustees  and  if,  out  of  an abundance of caution, they seek to amend the trust deed to bring it up to date with the modern approach to trustee investment, I have no difficulty with making those orders.

[4]      I have been advised by counsel for the applicants that notices were made in The New Zealand Herald advertising the proposed amendment.   The affidavit of Alexandra Perry confirms that the notices were made in The New Zealand Herald (on Tuesday, 30 September 2014) and in The New Zealand Gazette (published on Thursday, 2 October 2014).  I have been advised by counsel for the applicants that there have been no responses to those advertisements.   I have sought to have that confirmed by an affidavit and, for this reason, I am going to direct that the orders that I make today will lie in the body of the Court until such time as the applicants have filed an affidavit confirming that there has been no response to the advertisements in The New Zealand Herald or The New Zealand Gazette.

[5]      The present clause 3 of the trust deed is deleted.

[6]      I am satisfied, having heard from counsel, and having read the materials, that the appropriate replacement clause for clause 3 of the trust deed is that set out at paragraph (a) of the application dated 18 September 2014, namely:

3.        Investment of Trust Funds

(a)       The trustees may invest all money requiring investment in any property of whatever nature and wherever situated whether producing income or not and whether involving liability or not as the trustees in their absolute and uncontrolled discretion think fit, subject to their obligations under   the  Trustee  Act   1956   or   any   other   legislation governing the investment of trust funds.

(b)       Without  prejudice  to  the  generality  of  this  clause,  the trustees may incorporate a company or companies in any jurisdiction and may transfer all or part of the property of the Trust to that company or those companies whether by way of subscription, loan (at or free of interest and whether secured or   unsecured)   or   otherwise,   for   the   purposes   of   the investment of that property.

(c)       For  the  purposes  of  managing  the  investments  of  the Trust Fund the trustees may enter into transactions such as swaps, options, futures contracts, stock lending, sale and re- purchase transactions and other transactions of a similar nature.

(d)       The trustees and/or the custodian trustee may appoint any person as investment manager to invest and manage all or any  property  comprising  the  Trust  Fund  with  power  to invest, liquidate and re-invest or switch any assets placed under its management, appoint sub-managers and custodians and otherwise on such terms and conditions as the trustees and/or custodian trustee thinks fit.

(e)      The  trustees  may  appoint  any  person  to  provide administration services in relation to the affairs of the Trust.

[7]      I make orders in terms of [5] and [6] herein.

Duffy J