Lochhead v Attorney-General - [2020] NZHC 1735

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000490

[2020] NZHC 1735

UNDER the Trustee Act 1956

IN THE MATTER

of the Sefton Public Library

AND

an application for orders replacing the

trustees of the Sefton Public Library Trust and to vest certain property in the new

trustees

BETWEEN

DENISE ANN LOCHHEAD of Sefton, Housewife, LOIS BARBARA LOCHHEAD

of Sefton, Retired and JUNE BERYL THOMPSON of Christchurch, Teacher Plaintiffs

AND

ATTORNEY-GENERAL

Defendant

Counsel:
C W Knowles for Plaintiffs

D Jones and A P Lawson for Defendant

Judgment:

16 July 2020

(Determined on the papers)

JUDGMENT OF JUSTICE OSBORNE

This judgment was delivered by me on 16 July 2020 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

LOCHHEAD v ATTORNEY-GENERAL [2020] NZHC 1735 [16 July 2020]

Background

[1] This proceeding brought under pt 18 of the High Court Rules 2016 relates to the Sefton Public Library Trust established by trustees of the estate of James Young in 1923 for the charitable purpose of establishing a public library at Sefton (the Trust). The proceeding was filed with a without notice application for directions as to service and representation. On 29 August 2019, Associate Judge Paulsen directed service upon the Attorney-General whose interest in the proceeding is as the protector of charities.

[2] The Sefton Public Library has been closed for several years. The plaintiffs originally applied for orders replacing the trustees of the Trust, for the vesting of property in those trustees, for the sale of certain property and for variation of the terms of the Trust allowing for the liquidation of its assets. Following discussions between Counsel, the plaintiffs now seek orders only in terms of paragraphs 10a. and b. of the statement of claim which read:

a.An Order under section 51 of the Trustee Act 1956 or alternatively under the inherent jurisdiction of the High Court that the [plaintiffs] be appointed as replacement trustees for the Trust.

b.An Order under section 51(1)(a) of the Trustee Act 1956 or alternatively under the inherent jurisdiction of the High Court vesting the land at Sefton currently registered in the names of George Clarke, John Fitzpatrick and Philip John Thorne in the names of the [plaintiffs] as trustees of the Trust.

[3] The further orders sought in the statement of claim are no longer pursued. If appointed as trustees, it is now the plaintiffs’ intention to seek approval for a scheme under pt 3 Charitable Trusts Act 1957 authorising the sale of the library and distribution of the proceeds of sale for community purposes.

[4] The Attorney-General takes no position in respect to the two orders that are currently sought by the plaintiffs.

Facts

[5] James Young died on 24 October 1921 leaving a will dated 7 December 1920. Probate was granted to James Marshall of Rangiora, County Clerk and Frederick

William Johnston of Christchurch, Solicitor. The will required Mr Young’s trustees to establish a public library for…

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 Lochhead v Attorney-General

Details

AGLC: Lochhead v Attorney-General [2020] NZHC 1735
Case: [2020] NZHC 1735
Decision Date: 16 July 2020

CaseChat Overview and Summary

The case of Lochhead v Attorney-General concerned the appointment of new trustees for the Sefton Public Library Trust, established under the will of James Young in 1923. The plaintiffs, Denise Ann Lochhead, Lois Barbara Lochhead, and June Beryl Thompson, sought orders under the Trustee Act 1956 to replace the existing trustees and to vest certain property in the new trustees. The Trust, intended for the charitable purpose of establishing a public library in Sefton, had been inactive since the library's closure in 1996. The primary legal issues revolved around the unclear identity of the last trustees, the vesting of land held in the names of the original trustees, and the limitations imposed by the Charitable Trusts Act 1957 on the use of funds from the sale of the library's assets.

The Court addressed the plaintiffs' request to be appointed as trustees by examining the provisions of the Trust deed and the Trustee Act 1956. The deed stipulated that trustees should be appointed by the committee, but this process was problematic due to uncertainties about the identity of the last trustees and committee members. The Court found that it was expedient to appoint new trustees and that the plaintiffs met the requirements under the Trustee Act 1956. The Court concluded that the plaintiffs were appropriate individuals to be appointed as trustees given their initiative in taking steps to bring the Trust's affairs into order.

Regarding the vesting of land, the Court found that both sections 52(1)(a) and 52(1)(d) of the Trustee Act 1956 applied. As the plaintiffs were appointed as trustees, the land, currently held in the names of Philip John Thorne, John Fitzpatrick, and George Clarke, should be vested in the plaintiffs as the current trustees of the Trust. The Court ordered that the plaintiffs be appointed as trustees of the Sefton Public Library Trust and that the land be vested in their names. The costs and disbursements of the application were to be paid out of the Trust's assets.

Orders