McCallum v McCallum

[2016] NZHC 2929

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2970 [2016] NZHC 2929

IN THE MATTER

of an application by WILLIAM FRASER

McCALLUM as settlor of the W F McCallum Trust

BETWEEN

WILLIAM FRASER MCCALLUM First Plaintiff

WILLIAM FRASER MCCALLUM and CARRICK ROBERT ZACHARY MCCALLUM and CALLUM FRASER MCCALLUM as trustees of the W F McCallum Trust

Second Plaintiffs

AND

WILLIAM FRASER MCCALLUM JUNIOR

Defendant

Hearing:	5 December 2016
Appearances:	K G Davenport QC for the Plaintiffs No appearance by or for the Defendant
Judgment:	5 December 2016

ORAL JUDGMENT OF WOODHOUSE J

Solicitors / Counsel:

Ms K Davenport QC, Barrister, Auckland

Mr A van Schalkwyk (plaintiffs’ instructing solicitor), ASCO Legal, Solicitors, Auckland

MCCALLUM v MCCALLUM [2016] NZHC 2929 [5 December 2016]

[1]        The plaintiffs seek three orders.

[2]        Two orders are to remove the defendant as a trustee and for the title to land owned by the trust to be vested in the remaining trustees.  I am satisfied that both of those orders are properly made.  Accordingly, there are orders in terms of paragraphs

1 and 3 of the draft order.

[3]        The plaintiffs also seek alternative orders relating to a question whether the trust deed provides power to the settlor to remove trustees.  Having been referred to relevant provisions by Ms Davenport QC, I agree that the position is not entirely clear. A determination on that issue is reserved.

[4]        There is a fourth application for costs.  This is that the costs of all parties be met from the trust.  I am satisfied that that is an appropriate order to make at this stage.

[5]        Accordingly, there are orders as noted at [2] and [4].   My reasons for making those orders will follow together with my determination on the question of

interpretation.

Woodhouse J