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 DefendantJudgment:
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
- AGLC
- McCallum v McCallum [2016] NZHC 2929
- Case
- [2016] NZHC 2929
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the orders sought by the plaintiffs were appropriate and whether the trust deed provided the settlor with the power to remove trustees. The court had to consider the provisions of the trust deed and relevant case law in determining the outcome of the case. The court also had to consider the issue of costs and whether they should be met from the trust.
The court found that the orders sought by the plaintiffs were appropriate and that the title to the land owned by the trust should be vested in the remaining trustees. The court was not entirely clear on the issue of whether the trust deed provided the settlor with the power to remove trustees, and a determination on that issue was reserved. The court also found that it was appropriate for the costs of all parties to be met from the trust. The court provided reasons for its decision and will provide further reasons for its determination on the question of interpretation.
The final orders of the court were that William Fraser McCallum Junior be removed as a trustee of the W F McCallum Trust, the title to the land owned by the trust be vested in the remaining trustees, and the costs of all parties be met from the trust. The court reserved its determination on the question of whether the trust deed provided the settlor with the power to remove trustees.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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