Kathleen Dorothy Kirkby Charitable Trust - [2024] NZHC 1183

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2024-470-32

[2024] NZHC 1183

UNDER ss 124 and 125 of the Trusts Act 2019

AND

IN THE MATTER

of an application by PERPETUAL TRUST LIMITED as Trustee (the trustee) of the Kathleen Dorothy Kirkby (the settlor) Charitable Trust (the trust)

Hearing: 6 May 2024

Counsel:

T J Conder and P R Symonds for the trustee

B S Sutton for The Priory in New Zealand of the Most Venerable Order of the Hospital of St John of Jerusalem (St John)

Date of judgment:

13 May 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 13 May 2024 at 4.30pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Holland Beckett, Tauranga

Copy to:
The Priory in New Zealand of the Most Venerable Order of the Hospital of St John of Jerusalem

RE KATHLEEN DOROTHY KIRKBY CHARITABLE TRUST [2024] NZHC 1183 [13 May 2024]

[1] As duty judge, I have an application for judgment by default by way of formal proof,1 on the trustee’s originating application for orders approving proposed variations to a deed of trust.

Background

[2] The trust was settled on 31 March 1969 for specified health, education and medical research charitable purposes. The trust deed entitled trustees, “[d]uring the lifetime of the [s]ettlor”, to make distributions of up to 25 per cent of the trust fund’s capital to such charities approved by her. Power was reserved to her to include further charities as beneficiaries. Approved beneficiaries were named in supplementary deeds. The settlor died on 26 September 1992. The trustee has not since been able to make significant distribution to any beneficiary, despite the trust’s accumulating capital.

[3] Variation is sought to enable the trustee to give effect to the trust’s charitable purposes and the settlor’s ultimate intentions to all beneficiaries’ benefit, and without which all beneficiaries would detrimentally be affected by the trustee’s likely inability to make significant distributions after the settlor’s death, including by modernising its terms consistently with the Trusts Act 2019.

[4] The terms of the trust may encompass additional people who may acquire a beneficial interest in the future, and future persons who may acquire a beneficial interest. All named beneficiaries consent to the variation sought, as do a “representative sampling” of those contended to have an interest in the trust property.

Applicable law

[5] At their request and with the trustee’s agreement, terms of a trust may be varied by unanimous consent of all beneficiaries and/or — if there are people who lack capacity or may acquire a beneficial interest in the future, and/or future persons who may acquire a beneficial interest — with the Court’s approval of the variation on behalf of those latter beneficiaries.2

1 High Court Rules 2016, r 15.9.
2 Trusts Act 2019, s 122.

[6]The Court’s approval may be sought under s 124 of the Trusts Act 2019:

Power of court to approve…

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.

Keep reading for free

Create a free CaseChat account to read Kathleen Dorothy Kirkby Charitable Trust and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 1183
Decision Date: 13 May 2024

CaseChat Overview and Summary

The case before the High Court of New Zealand involved an application by Perpetual Trust Limited, as trustee of the Kathleen Dorothy Kirkby Charitable Trust, for approval of proposed variations to the trust deed. The application was brought under sections 124 and 125 of the Trusts Act 2019, seeking the court's approval for the variation of the trust to enable the trustee to distribute trust funds in line with the settlor's charitable intentions. The application was made by default and the hearing took place on 6 May 2024, with the judgment delivered on 13 May 2024.

The legal issues that the court had to decide included whether the proposed variations to the trust deed were in line with the settlor's intentions and whether the court's approval was necessary for beneficiaries who may acquire an interest in the future. The court had to consider the factors outlined in section 124(4) of the Trusts Act 2019, including the effect of the proposed variation on the interests of the beneficiaries, the benefit or detriment to the beneficiaries, and the settlor's intentions. The court also needed to determine if the variation would reduce or remove any vested interest in the trust property, which would be a bar to approval.

The court found that the trustee's application for variation was consistent with the settlor's intentions to provide for the indefinite distribution of the trust's capital for charitable purposes. The court was satisfied that all beneficiaries, including those who may acquire an interest in the future, would consent to the variation if properly advised. The court also determined that the variation would not reduce or remove any vested interest and would not be detrimental to any beneficiary. The court approved the variation, noting that achieving consistency with the new Trusts Act was desirable and could not have been foreseen at the time the trust was established.

The court's final order approved the variation of the trust in the terms set out in the affidavit of Stuart Alexander Thom, which was annexed as exhibit I to the trustee's application. The order was made on behalf of any beneficiary who may acquire a beneficial interest in the future, ensuring the trust's ongoing operation in accordance with the settlor's charitable intentions.

Orders