New Zealand Medical Education Trust (ex parte Perpetual Trust Limited)

[2022] NZHC 1255

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-117

[2022] NZHC 1255

UNDER

the Charitable Trusts Act 1957

IN THE MATTER

of an application for approval of a charitable trust scheme for The New Zealand Medical Education Trust

EX PARTE

PERPETUAL TRUST LIMITED as trustee of The New Zealand Medical Education Trust

Applicant

Appearances:

J Cowan for Applicant

G W C McNab (Objector) in person

Judgment:

31 May 2022

(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 31 May 2022 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE THE NEW ZEALAND MEDICAL EDUCATION TRUST EX PARTE PERPETUAL TRUST LTD [2022] NZHC 1255 [31 May 2022]

[1]                  On 12 May 2022, this Court issued a judgment approving the applicant’s scheme for variation of the powers of the trustees and the mode of administration of The New Zealand Medical Education Trust, subject to an identified modification (the recalled Judgment).1

The recall

[2]                  One person, Gordon McNab, had given written notice of his intention to oppose the scheme.2 Beyond the simple notice of objection, Mr McNab did not provide any detail of grounds of objection. He did not file any evidence. He did not appear at the scheduled hearing on 11 May 2022.

[3]                  It transpired that an email notification forwarded by the Deputy Registrar ahead of the hearing, in relation to VMR arrangements for the hearing, was directed to an email address other than that used by Mr McNab in his notice of objection. Following the issue of the (now) recalled Judgment, Mr NcNab wrote to the Deputy Registrar by email. He indicated that he had not received the details concerning the connection for the hearing via VMR and that he had been hospitalised on 11 May 2022, remaining in hospital seriously ill as at 17 May 2022.

[4]                  In these circumstances, I issued a Minute on 27 May 2022 recalling the (now) recalled Judgment.

[5]I allocated a hearing (by VMR) at 10.00 am, 2 June 2022.

[6]                  I directed that Mr McNab file and serve by 31 May 2022 a memorandum setting out his particular grounds of objection.

Mr McNab’s response

[7]On 30 May 2022, Mr McNab sent an email to the Deputy Registrar. He stated:

I am not going to be joining the broken proceedings which you are vainly timetabling for hearing this coming week — but I would find no other date in this piece of unacceptable over-reaching either proper or satisfactory to me.

1      Re The New Zealand Medical Education Trust ex parte Perpetual Trust Ltd [2022] NZHC 996.

2      Pursuant to s 37 Charitable Trusts Act 1957.

I will, as would be expected, apply to set aside on Mr Justice Osborne as High Court Rule 10.9 of the High Court Rules provides. Also, this proceeding needs to be removed from the High Court at Dunedin to the High Court at Wellington for obvious reasons, and as soon as possible.

Determination

[8]                  In the circumstances, it is clear that Mr McNab elects not to avail himself of the opportunity to participate at the hearing.

[9]                  In these circumstances there is nothing that would alter the conclusions previously reached in the recalled Judgment.

[10]              The recalled Judgment (dated 12 May 2022) is now to be reissued.    The Judgment will accordingly speak from today’s date.

Osborne J

Solicitors:

Anderson Lloyd, Dunedin

Copy to: Virginia Hardie, Deputy Solicitor-General G W C McNab