McCallum v McCallum - [2017] NZHC 1218

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2970 [2017] NZHC 1218

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

Reasons:

6 June 2017

REASONS JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 6 June 2017 at 2:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:
Ms K Davenport QC, Barrister, Auckland
Mr A van Schalkwyk (plaintiffs’ instructing solicitor), ASCO Legal, Solicitors, Auckland

MCCALLUM v MCCALLUM [2017] NZHC 1218 [6 June 2017]

[1] By originating application the plaintiffs sought four orders, as follows:

(a) An order removing the defendant as a trustee of the W F McCallum

Trust (the trust).

(b)An order, following removal of the defendant as a trustee, vesting title to two properties in the names of the remaining trustees.

(c) A declaration that the trust deed includes a power to remove trustees or, if it does not, an order varying the trust to include such a power.

(d) An order that the costs of all parties be met from the trust.

[2] In an earlier judgment, without reasons, I made the first, second and fourth of those orders, with reasons to follow. I now provide reasons for making those orders.

[3] The application for the third order, in sub-paragraph (c), was adjourned for further consideration and that application is now considered.

Background

[4] The parties to this proceeding all have the surname ‘McCallum’. For that reason it will be convenient to refer to them by their given names. In addition, the first plaintiff and the defendant, who are father and son, have identical names. I will refer to the first plaintiff as ‘William senior’ and to the defendant as ‘William junior’.

[5] William senior was the settlor of the trust and one of the trustees.

[6] The trustees of the trust, at the time the earlier orders were made, in addition to William senior, were his brother Robert, his son William junior, and his nephew Callum. The trustees named as second plaintiffs do not include William junior for reasons I will come to. The beneficiaries are William senior’s wife, his daughter and William junior.

[7] All parties required to be served were served, being the beneficiaries and all trustees. At the substantive hearing, in respect of which appropriate notice had been given to all parties required to be served, there was no appearance for any party other than the first and second plaintiffs through their counsel, Ms Davenport QC.

The order for removal of William junior as a trustee

[8] There were detailed affidavits from William senior and from…

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 McCallum v McCallum

Details

AGLC: McCallum v McCallum [2017] NZHC 1218
Case: [2017] NZHC 1218
Decision Date: 5 December 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case McCallum v McCallum involved an application by William Fraser McCallum, as settlor of the W F McCallum Trust, seeking to remove William Fraser McCallum Junior from his position as a trustee. The plaintiffs, including William senior and other trustees, sought four orders: removal of William junior as a trustee, vesting title to two properties in the remaining trustees, a declaration regarding the power to remove trustees, and an order for costs to be met from the trust. The court made orders for the first, second, and fourth orders, with reasons to follow for the removal order. The primary legal issue was whether the court had the inherent jurisdiction to remove a trustee who refused to act reasonably with co-trustees. The court found that William junior's refusal to discuss a proposal for the trust's benefit demonstrated his unfitness to act as a trustee. The court exercised its inherent jurisdiction to remove William junior in the interests of the beneficiaries and the trust property. The court also found that the trust deed did not contain an express or implied power for the settlor to remove trustees. Therefore, the application for a declaration or variation of the trust deed was dismissed. The court ordered that the costs of all parties be met from the trust, considering the applications were justified and the costs for the unsuccessful application were likely to be minimal.

Final orders:
1. William Fraser McCallum Junior is removed as a trustee of the W F McCallum Trust.
2. Title to two properties is vested in the remaining trustees.
3. The application for a declaration or variation of the trust deed is dismissed.
4. Costs of all parties are to be met from the trust.

Orders