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 DefendantJudgment:
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…
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- AGLC
- McCallum v McCallum [2017] NZHC 1218
- Case
- [2017] NZHC 1218
- Decision Date
CaseChat Overview and Summary
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
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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