McCallum v McCallum

[2024] NZHC 3884

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2024-404-3112

[2024] NZHC 3884

UNDER

Part 19 of the High Court Rules, the Trusts Act 2019

IN THE MATTER OF

An application by:

ANN CAROL MCCALLUM, PAUL MERVYN COLLINS and HECTOR MCCALLUM TRUSTEES LIMITED

First Applicants

ANN CAROL MCCALLUM, PAUL MERVYN COLLINS and CAROL MCCALLUM TRUSTEES LIMITED

Second Applicants

Hearing:	On the papers
Counsel:	B P Molloy for the Applicants
Date:	18 December 2024

JUDGMENT OF GARDINER J

This judgment was delivered by me on 18 December 2024 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Haigh Lyon Lawyers Ltd, Auckland

MCCALLUM [2024] NZHC 3884 [18 December 2024]

[1]                 The applicants apply for this Court’s approval on behalf of future beneficiaries of the A.C. McCallum Family Trust and the H.S McCallum Family Trust (the Trusts) to extend the vesting date of the Trusts by 10 years.

[2]                 In an earlier minute, I gave the applicants leave to make the application by way of without notice originating application under Part 19 of the High Court Rules 2016. I considered that approach justified because there are no contested issued; the proceeding is straightforward; and all existing beneficiaries had provided their written consent to the proposed variation.

[3]This judgment determines the substantive originating application.

[4]                 The Court’s approval to the variation is required in respect of future spouses of the children and grandchildren of Mr and Mrs McCallum; and future grandchildren and great grandchildren of Mr and Mrs McCallum: ss 122(2)(c) and 124(2) of the Trusts Act 2019 (the Act).

[5]                 Section 124(4) confirms the Court must consider: the nature of their interest in the Trust property and the effect of the proposed order on that interest; the benefit or detriment that may result to them if the Court makes or refuses to make the proposed order; and the intentions of the settlors in settling the Trusts.

[6]                 All the existing beneficiaries of the Trusts have signed deeds of consent and requests for the variation. Mrs McCallum, who is a discretionary beneficiary of the

H.S McCallum Family Trust, has recorded her written consent and request to her fellow trustees in her affidavit.

[7]                 The trustees have filed affidavits deposing to the original intentions of the settlors of the Trusts and the reason for the variation sought. An affidavit from the chartered accountant who advises the Trusts confirms that extending the vesting date by 10 years will allow the trustees to better manage tax and other practical complications that would arise should the vesting date not be extended.

[8]                 Any future spouses, future grandchildren, and future great grandchildren of Mr and Mrs McCallum would be discretionary and final beneficiaries of the Trusts.

[9]                 I am satisfied, based on the affidavit evidence filed and the written submissions of Mr Molloy, that the variation to the vesting date is likely to benefit the existing and future beneficiaries, as it will reduce the need for the trustees to realise assets to pay mortgage debt and tax liabilities. I am further satisfied that such an approach is consistent with the intentions of the settlors of the Trusts, Mr and Mrs McCallum.

Result

[10]              Pursuant to s 124(2) of the Trusts Act 2019, I approve the variation of the A.C McCallum Family Trust and the H.S McCallum Family Trust to extend the vesting date from 1 June 2026 to 1 June 2036.

Gardiner J