Maiolini v Fideis (New Zealand) Limited
[2025] NZHC 2778
•24 September 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-417
[2025] NZHC 2778
UNDER Part 18 of the High Court Rules 2016, the Trusts Act 2019, and the inherent jurisdiction of the High Court BETWEEN
GIACOMO MAIOLINI
First Plaintiff
GIACOMO MAIOLINI, CARLA MANZATO and LORENZO MAIOLINI
Second Plaintiffs
AND
FIDEIS (NEW ZEALAND) LIMITED
First Defendant
QUINOA TRUSTEES LIMITED
Second Defendant
Hearing: On the papers Counsel:
T M Molloy S R J Hamilton for the plaintiffs
D Nilsson and A McDonald for the first defendant
D Bigio KC and C E Harris for the second defendantJudgment:
24 September 2025
JUDGMENT OF BLANCHARD J
This judgment was delivered by me on 24 September 2025 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar
Solicitors:
Cone Marshall Ltd, Auckland
Lee Salmon Long Barristers and Solicitors, Auckland Jackson Russell Lawyers, Auckland
Shortland Chambers, Auckland
MAIOLINI v FIDEIS (NEW ZEALAND) LIMITED [2025] NZHC 2778 [24 September 2025]
[1] The plaintiffs applied under s 138 of the Trusts Act 2019 and the inherent jurisdiction of the Court for orders appointing interim receivers to administer the Riga Settlement (NZ) trust and the Quinoa Settlement trust. The first defendant (Fideis NZ), the trustee of the Riga Settlement (NZ), and the second defendant (QTL), the trustee of the Quinoa Settlement, opposed the application. In my judgment of 4 July 2025, I declined the application in relation to the Riga Settlement (NZ) but I granted the application in relation to the Quinoa Settlement. 1 QTL now applies under s 56 of the Senior Courts Act 2016 for leave to appeal the decision to appoint receivers to manage the Quinoa Settlement. The application is opposed by the plaintiffs.
The trusts
[2] The Riga Settlement (NZ) and the Quinoa Settlement were established under the law of New Zealand. Fideis NZ and QTL are New Zealand companies.
[3] The Riga Settlement (NZ) and the Quinoa Settlement were preceded by the Riga Settlement, a trust established under the law of Nevis. The trustee of the Riga Settlement was Fideis (Nevis) Ltd (Fideis Nevis), a company incorporated in Nevis. Fideis Nevis was struck off the Nevis companies register in 2015 and therefore no longer exists.
[4] The plaintiffs say that Giacomo2 was the ultimate source of all the assets settled on the three trusts. In 2005, he settled the Riga Settlement. In 2010, the Riga Settlement (NZ) was established, and the assets of the Riga Settlement were resettled into the Riga Settlement (NZ). In 2015, the Quinoa Settlement was established, and the assets of the Riga Settlement (NZ) were transferred to the Quinoa Settlement.
[5] Further background is set out in my judgment of 4 July 2025 and I will not repeat it.3
1 Maiolini v Fideis (New Zealand) Ltd [2025] NZHC 1832.
2 For convenience and meaning no disrespect, I will use Giacomo Maiolini’s first name.
3 Maiolini v Fideis (New Zealand) Ltd, above n 1, at [3]–[61].
Leave criteria
[6] Section 56 of the Senior Courts Act provides a “filtering mechanism” to ensure that unmeritorious appeals of interlocutory orders, or appeals of interlocutory orders of no great significance to the parties or more generally, do not unnecessarily delay proceedings.4 A “high threshold” applies. Applicants must raise an arguable error of law or fact that is of general or public importance, or one that is otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value. The significance or implications of such an error, either for the particular case or for the applicant, or as a matter of precedent, must warrant the further delay and cost of the appeal.5
Alleged errors
[7]QTL alleges that my judgment wrongly:
(a)found that Giacomo was the settlor of the Riga Settlement;
(b)made no finding as to the plaintiffs’ standing to seek the substantive relief claimed in the statement of claim or the Court’s jurisdiction over foreign trusts;
(c)found that QTL’s arguments that the Quinoa Settlement is valid or could be validated by rectification are weak;
(d)found that Fideis NZ did not have the power to resettle assets on the Quinoa Settlement;
(e)found that the plaintiffs were “interested persons” for the purposes of s 138 of the Trusts Act;
4 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [13].
5 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6]; Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [17]; and Wallace v Green [2022] NZHC 800 at [17].
(f)disregarded the legal consequences of the trust structures put in place; and
(g)found that the appointment of receivers was reasonably necessary.
[8]I will consider each of these alleged errors in turn.
Whether Giacomo was the settlor of the Riga Settlement
[9] Giacomo was not named as the settlor in the Riga Settlement trust deed. But the plaintiffs’ case is that he was the settlor of the trust. As I have said, they say that he was the ultimate source of all the assets of the trust.
[10]But QTL wishes to argue on appeal that:
(a)Giacomo was only the beneficial owner of the assets alleged to have been settled on the Riga Settlement;
(b)this means some other person, entity or trust must have held legal title to the assets allegedly settled on the trust; and
(c)there is no evidence as to the basis of Giacomo’s interest or who held legal title to the assets.
[11]Alternatively, QTL seeks to argue that:
(a)if Giacomo did purport to settle on the Riga Settlement his beneficial interest (rather than legal title), then the nature of that beneficial interest is important;
(b)a beneficial interest that is no more than a mere expectancy is not capable of being settled on a trust because the transferor does not hold a sufficient proprietary interest in the assets; and
(c)if Giacomo held his interest in the assets as a discretionary or unnamed beneficiary of another trust, then that interest was not capable of settlement on trust.
[12] QTL also says that the plaintiffs did not address whether, under Nevis law, a mere beneficial interest in assets is sufficient to support a finding that Giacomo was the settlor.
[13] QTL says that, if Giacomo was not a settlor of the Riga Settlement, the effect would be to call into question the entire basis of the plaintiffs’ claim.
[14] But the arguments that QTL seeks to make are new ones. It has not made them previously. Further, they are not arguments that are immediately obvious. I therefore do not see how it can be said to be an error for my judgment not to address them. It is also unsurprising that the plaintiffs did not obtain evidence of Nevis law in respect of a point that QTL had not raised.
Plaintiffs’ standing to seek the substantive relief claimed in the statement of claim or the Court’s jurisdiction over foreign trusts
[15] QTL seeks to argue on appeal that the plaintiffs do not have standing to seek the substantive relief claimed in the statement of claim because:
(a)the plaintiffs’ case is that the Quinoa Settlement assets are held on resulting trust for the Riga Settlement;
(b)the plaintiffs are not the settlors, trustees or beneficiaries of the Riga Settlement;
(c)as such, the plaintiffs themselves have no claims to a resulting trust; and
(d)the Riga Settlement is the appropriate plaintiff.
[16]QTL further argues that:
(a)the Riga Settlement cannot presently be a plaintiff because its trustee has been struck off;
(b)the Riga Settlement is subject to the laws of Nevis and has no real and substantial connection to New Zealand; and
(c)if the plaintiffs can establish a sufficient interest in the Riga Settlement under Nevis law (notwithstanding the terms of the trust deed), then they should have appointed a new trustee in Nevis so that the trustee could bring the resulting trust claim in New Zealand.
[17] I did not accept these arguments. The Riga Settlement cannot be the plaintiff because it is not a legal entity. It can only act through its trustee. As Fideis Nevis, the trustee of the Riga Settlement, has been struck off and therefore does not exist, it cannot be the plaintiff. But the plaintiffs’ claim addresses the fact that there is no trustee by seeking an order of this Court appointing a new trustee to the Riga Settlement, (namely, New Zealand Trust Corporation Ltd (NZTC), a trustee company operated by the plaintiffs’ solicitors). Based on English authority, I held that the Court has the power to make an order of that kind, even though the Riga Settlement is a foreign trust.6 The making of this order, if the Court decides it is right to do so, will resolve the issue of standing.
[18]QTL argues that this was in error. Specifically, it says I erred because:
(a)I made no finding that the plaintiffs have standing to seek the substantive relief claimed in the statement of claim; and
(b)the Court does not have jurisdiction to appoint a trustee to the Riga Settlement. QTL says this is so because the Riga Settlement has no real and substantial connection to New Zealand. It also suggests that it is doubtful whether the English authorities apply in New Zealand. It says the Trusts Act applies only to New Zealand trusts,7 and it is not settled
6 Maiolini v Fideis (New Zealand) Ltd, above n 1, at [72].
7 Trusts Act 2019, s 5.
law in New Zealand that the Court has the inherent jurisdiction to make such an appointment.
[19] I do not think that I erred by making no finding that the plaintiffs have standing to seek the substantive relief. As I have said, the making of an order appointing a new trustee, if the Court decides it is right to do so, will resolve the issue of standing. The issue could be determined in advance of trial as a preliminary issue. If the plaintiffs are successful in relation to the issue, NZTC could be joined as a plaintiff.
[20] In my view, it is also wrong that the Riga Settlement has no real and substantial connection to New Zealand. If the plaintiffs’ claims are successful, then its trustees have a resulting trust claim in relation to assets that were resettled onto two successive New Zealand trusts that have been administered by New Zealand incorporated trustee companies for around 15 years. Further, I think it is likely that the English authorities do apply in New Zealand. But whether this Court has the power to appoint trustees to a foreign trust is not something that needs to be determined at this interlocutory stage. It does not need to be determined until the Court actually decides whether to appoint NZTC (or any other individual or entity) as trustee of the Riga Settlement.
Whether QTL’s arguments that the Quinoa Settlement is valid or could be validated by rectification are weak
[21] In my judgment, I provided a brief assessment of the strength of the plaintiffs’ claims, to the extent I was able to at an early stage of the proceeding. I reached the conclusion that, based on the evidence before the Court, the plaintiffs’ claims have a good prospect of success.8 This informed my decision to appoint interim receivers (as well as my decision in the same judgment regarding the defendants’ security for costs application) because I considered it to be relevant both to whether the appointment of receivers was reasonably necessary and whether it was just and equitable.9
[22] In making my assessment, I discussed the plaintiffs’ argument that the Riga Settlement (NZ) and the Quinoa Settlement were invalid trusts because they did not
8 Maiolini v Fideis (New Zealand) Ltd, above n 1, at [66]–[74].
9 At [100], [107] and [113].
have any beneficiaries when they were established, and therefore, the assets held by the Quinoa Settlement were held on resulting trust for the Riga Settlement. In doing so, I considered QTL’s arguments that the Quinoa Settlement was valid because it did in fact have a beneficiary when it was established or, if it did not, that could be remedied by rectification. In making these arguments, QTL relied on a letter of wishes dated 2 March 2015 to say that UNICEF was a beneficiary of the Quinoa Settlement when it was established. But I noted that the letter itself said that it was not intended to bind the trustee and I expressed the view that these arguments appeared to be weak.10
[23] QTL takes issue with my assessment that the arguments are weak. QTL argues that, in doing so, I erred because:
(a)Post-enactment of s 15 of the Trusts Act, a trust deed does not need to name the beneficiaries of a trust.
(b)I took an inconsistent approach to the various letters of wishes in the case. I cast doubt on whether the 2 March 2015 letter supported QTL’s argument that the Quinoa Settlement was valid or could be validated by rectification. But I relied on other letters of wishes, which were also said to be non-binding, to conclude that the plaintiffs were the settlor’s intended objects of the power of appointment of beneficiaries contained in the trust deeds.
(c)I wrongly disregarded QTL’s evidence that the Quinoa Settlement “was administered from the outset on the basis of the documents as they existed”.
[24] I did not express a view on whether s 15 of the Trusts Act means that a trust deed does not need to name the beneficiaries of a trust. I proceeded on the assumption that QTL could be right on this point. Therefore, it cannot be said that I made an error with regard to s 15.
10 At [67]–[69].
[25] I also do not accept that I took an inconsistent approach to the letters of wishes. I treated all of them as non-binding expressions of intent. The reason there were different outcomes was not because I was inconsistent. It was because the legal questions I was addressing were not the same. The 2 March 2015 letter appeared to me to be insufficient to make UNICEF a beneficiary because a non-binding wish does not create the certainty of objects required to form a valid trust.11 But the other letters of wishes were sufficient to show that the plaintiffs were intended objects of the power of appointment (which was one of the matters that I considered supported the conclusion that the plaintiffs had standing as “interested persons” under s 138 of the Trusts Act).
[26] Finally, I am not sure what QTL means when it suggests I was wrong to disregard evidence that the Quinoa Settlement “was administered from the outset on the basis of the documents as they existed”. If it means I was wrong to disregard evidence suggesting that UNICEF was a beneficiary of the trust, then my response is that there was no such evidence. QTL says that Mr Campbell was the settlor of the Quinoa Settlement, but no evidence was provided by him, despite the fact he is the 100 per cent shareholder of QTL.
Whether Fideis NZ did not have the power to resettle assets on the Quinoa Settlement
[27] In making my assessment that the plaintiffs’ claims have a good prospect of success, I suggested that, even if the Quinoa Settlement is valid or, following rectification, it will be treated as such, the assets it received are still subject to resulting trust. This is because, as the Riga Settlement (NZ) was invalid (because it did not have any beneficiaries when it was established) Fideis NZ did not have the power to resettle the assets on the Quinoa Settlement.12
[28]QTL seeks to argue on appeal that:
(a)The Riga Settlement (NZ) was not invalid. The plaintiffs’ case is that the Riga Settlement (NZ) was invalid because it did not have any
11 Trusts Act, s 15(1)(b)(ii).
12 Maiolini v Fideis (New Zealand) Ltd, above n 1, at [71].
beneficiaries. As Fideis NZ and QTL did not challenge this part of the plaintiffs’ case, I proceeded on the basis that the Riga Settlement (NZ) was invalid. However, QTL now says that this was an error.
(b)Even if the Riga Settlement (NZ) was invalid, Fideis NZ still had the power to resettle assets.
[29] I do not think I made any error here. Fideis NZ and QTL did not challenge the plaintiffs’ position that the Riga Settlement (NZ) was invalid. Further, the evidence that it was invalid, which I summarised in my judgment,13 seems to be reasonably strong. I also remain of the view that, if it was invalid, then the resettlement of the assets on QTL was invalid because it was a volunteer.14
[30] In any case, as I have said, the relevant part of my judgment was intended to provide a brief assessment of the merits of the plaintiffs’ claims, to the extent I was able to at an early stage of the proceeding. My judgment did not make conclusive findings about any of these matters.
Whether the plaintiffs were “interested persons” for the purposes of s 138
[31] Before I decided whether I should appoint receivers to manage the Quinoa Settlement under s 138, I first needed to determine if the plaintiffs had standing to make the application. I concluded that they did.15
[32]QTL wishes to argue that, in doing so, I erred because:
(a)I applied the wrong test because I found that “it is at least reasonably arguable that the plaintiffs are interested persons”16 when the applicant under s 138 must actually be an interested person; and
13 At [16]–[20].
14 Foskett v McKeown [2001] 1 AC 102 (HC) at 127 and 132. See also Khan v New Zealand Muslim Association [2025] NZCA 109 at [23]; and Enright v Newton [2020] NZCA 529, [2021] 2 NZLR 412 at [139].
15 Maiolini v Fideis (New Zealand) Ltd, above n 1, at [85]–[90].
16 At [87].
(b)I wrongly relied on an undated letter of wishes relating to the Quinoa Settlement that appears to have been signed by Mr Campbell.
[33] I can see how my saying that “it is at least reasonably arguable that the plaintiffs are interested persons” might suggest to the reader that I did not reach a final conclusion. I accept that I could have expressed myself more clearly. However, this was only how I began my discussion of the issue. I went on to make a series of points that, in my view, clearly establish that the plaintiffs are interested persons.17 I then reached the firm conclusion that the plaintiffs had standing under s 138.18 I think that, when what I said is considered as a whole, it is clear that I considered that the plaintiffs were interested persons. Certainly, that is what I intended to conclude.
[34] The reason I say that the undated letter of wishes related to the Quinoa Settlement appears to have been signed by Mr Campbell is because QTL denies that he did but its evidence on this point was not convincing.19 QTL suggests that my reliance on this letter of wishes is inconsistent with the suggestion elsewhere in my judgment that Fideis NZ, not Mr Campbell, settled the assets on the Quinoa Settlement. QTL is correct that, on the evidence that was before me, it did not appear to me that Mr Campbell was the settlor. However, the letter is only one of a number of matters I pointed to in reaching the conclusion that the plaintiffs were interested persons. Further, QTL contends that Mr Campbell is the settlor of the trust, and, if it is right about that, then this letter may be relevant.
Alleged disregard of the legal consequences of the trust structures put in place
[35] QTL asserts that my judgment disregards the legal consequences of the trust structures the plaintiffs put in place. But QTL does not elaborate on this. It does not say how the judgment disregards the legal consequences of the trust structures. I am unsure what it is referring to and do not see any error here.
17 At [87]–[89].
18 At [90].
19 At [33]–[36] and [89].
Whether the appointment of receivers was reasonably necessary
[36] QTL correctly records that my findings that appointment of receivers was reasonably necessary and just and equitable were informed by my conclusion that the plaintiffs’ claims appeared to have a good prospect of success (to the extent I could assess this at this early stage).20 The implication seems to be that my assessment of the strength of the claim was wrong and, therefore, my findings about these matters should be revisited. However, for the reasons discussed above, nothing QTL has said leads me to wish to change my assessment.
Importance
[37] QTL says that the proposed appeal raises the following matters that are of general importance:
(a)whether having only an unspecified beneficial interest in property is sufficient for someone to establish themselves as the settlor of a trust;
(b)this Court’s jurisdiction over foreign trusts and its ability to appoint a replacement trustee to a defunct trust;
(c)whether s 15 of the Trusts Act means that a trust deed for an express trust does not need to name a beneficiary; and
(d)the scope of s 138 of the Trusts Act, which has not yet been directly considered by an appellate Court.
Whether having only an unspecified beneficial interest in property is sufficient for someone to establish themselves as the settlor of a trust
[38] This is potentially an interesting question. But, as mentioned above, it arises in the context of an argument that QTL has not raised before now. I do not think it was an error for my judgment not to address the argument.
20 At [100], [107] and [113].
This Court’s jurisdiction over foreign trusts and its ability to appoint a replacement trustee to a defunct trust
[39] Whether this Court can appoint a trustee to the Riga Settlement might raise issues of general importance. However, it would be premature for the Court of Appeal to consider these issues at this stage. The issues do not need to be determined at this interlocutory stage. They do not need to be determined until the Court actually decides whether to appoint NZTC as trustee of the Riga Settlement.
Whether s 15 of the Trusts Act means that a trust deed for an express trust does not need to name a beneficiary
[40] Again, this might be an issue of general importance, but it would be premature for the Court of Appeal to consider the issue. My judgment did not address this issue because it did not need to. As I have said, in the relevant part of my judgment, I provided a brief assessment of the strengths of the plaintiffs’ claims, to the extent I was able to an early stage. I did not address this issue because it does not need to be determined at this point. It does not need to be determined until the Court actually determines the substantive claims in the statement of claim.
The scope of s 138 of the Trusts Act
[41] The scope of s 138 might be an issue of general importance but, in my view, QTL has not identified any error in the way I applied the section. For the reasons given above, neither of the matters raised by QTL suggest to me that I made an error in relation to s 138.
Importance to QTL
[42] QTL asserts that the proposed appeal is of sufficient importance to QTL because the appointment of receivers to the Quinoa Settlement creates a risk of serious harm to the trust and QTL. But QTL does not elaborate on this. It does not identify any particular reason why the appointment of receivers creates a risk of serious harm. As the receivers are suitably qualified and independent and the appointment is an only interim one to protect the trust assets pending trial, I cannot see any basis for QTL’s allegation.
Conclusion
[43] For these reasons, QTL’s application for leave to appeal does not meet the high threshold under s 56 of the Senior Courts Act.
Result
[44]The application for leave to appeal is declined.
Blanchard J
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