Hayward Trustee Services Limited - [2022] NZHC 2217

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-242

[2022] NZHC 2217

UNDER the Trusts Act 2019

IN THE MATTER

of The Wayne Hayward Family Trust

BETWEEN

HAYWARD TRUSTEE SERVICES LIMITED

Applicant

Hearing: On the papers

Appearances:

A S Butler and K A Ewer for Applicant

Judgment:

2 September 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 2 September 2022 at 10.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE HAYWARD TRUSTEE SERVICES LIMITED [2022] NZHC 2217 [2 SEPTEMBER 2022]

Introduction

[1] Hayward Trustee Services Limited (the current trustee) is the trustee of the Wayne Hayward Family Trust (the trust). By way of an originating application,1 the current trustee seeks orders to address concerns as to the validity of certain retirements and appointments of trustees between 2017 and 2021.

[2]The orders the current trustee seeks are as follows:

(a)That the original trustees of the trust, being Alister Argyle and John Falloon (the original trustees), were validly discharged on 23 August 2017 and were validly replaced by Wayne Hayward (Wayne) and the current trustee on that date.

(b)That if the original trustees were not validly discharged on 23 August 2017, then they should now be removed and validly discharged as trustees by the Court under s 112 Trusts Act 2019.

(c)That Wayne’s removal and retirement as a trustee on 16 October 2020 be treated as valid on the grounds that either:

(i)it was permissible under the trust deed; or

(ii)the original trustees had not been validly discharged as trustees due to s 45(3) Trustee Act 1956, therefore when Wayne was removed/retired there were two individual trustees able to act as trustees; or

(iii)in any event, Wayne’s diminishing capacity meant that it was appropriate he remove himself from office as trustee; or

1 Leave was granted to proceed in this way by Associate Judge Lester on 29 June 2022.

(iv)that it is appropriate to treat him as having been discharged as trustee from 30 January 2021 when the Trusts Act 2019, particularly s 104, came into force.

(d)That the current trustee is the validly appointed sole trustee of the trust and is permitted to act as sole trustee on the grounds that there is no minimum required number of trustees under the deed or the Trusts Act 2019.

(e)Alternatively, if the current trustee’s appointment was defective, that it now be appointed by the Court pursuant to s 114 Trusts Act 2019.

(f)That trustee decisions made from 23 August 2017 to date be treated as having been validly made pursuant to s 100 Trusts Act 2019. This order is sought only to the extent that there is doubt as to the validity of trustee actions to date.

(g)That, in the event the current trustee is found to not have been validly appointed, it is nonetheless able to claim the benefit of the trustee’s indemnity under the 1956 and 2019 acts.

(h)The costs the current…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hayward Trustee Services Limited

Details

AGLC: Hayward Trustee Services Limited [2022] NZHC 2217
Case: [2022] NZHC 2217
Decision Date: 2 September 2022

CaseChat Overview and Summary

Hayward Trustee Services Limited, the trustee of the Wayne Hayward Family Trust, applied to the High Court of New Zealand to confirm the validity of certain retirements and appointments of trustees that occurred between 2017 and 2021. The court was required to determine whether the original trustees were validly discharged and replaced by Wayne Hayward and the current trustee, whether Wayne's retirement was valid, and whether the current trustee is the validly appointed sole trustee of the trust. The court also needed to consider whether the decisions made by the trustees from 23 August 2017 to date were valid.

The court found that the trust deed permitted the appointment of a sole trustee, and therefore, the retirements, discharges, and appointments in question were valid. The court held that the trust deed expressly contemplated the appointment of a body corporate as a trustee, and therefore, the current trustee was able to be validly appointed. The court concluded that the decisions and actions of the trustees in relation to the trust were valid.

The court granted the orders sought by the current trustee, confirming the validity of the retirements, discharges, and appointments in question. The court also ordered that the costs of the current trustee be paid out of the trust on an indemnity basis and that the reasonable costs of the remaining parties to the proceeding be paid out of the trust.

Orders