Public Trust v Daken

The case of Public Trust v Daken was heard by Faire J in the High Court of New Zealand. The Public Trust, acting as the sole remaining trustee of the Daken Family Trust, applied for orders to remove Malcolm Erwin Daken from the title of the property located at 2 Fearon Street, Motueka, and to vest the title in the name of the Public Trust alone. Additionally, the Public Trust sought to vest Malcolm Daken’s powers as Protector in the trustee(s) of the Daken Family Trust. The application was brought under section 52 of the Trustee Act 1956. The court was required to determine whether it had the jurisdiction to remove Malcolm as a trustee due to his incapacity, and whether it could vest his powers as Protector in the Public Trust.

Faire J found that the court did have the jurisdiction to remove Malcolm as a trustee and to vest the property title in the Public Trust. The court considered that Malcolm's incapacity was confirmed by a medical certificate and that the trust deed permitted the Public Trust to act as the sole trustee. The court also found that it was appropriate to vest Malcolm’s powers as Protector in the Public Trust, as Malcolm was unable to exercise those powers due to his lack of capacity. The court referred to previous cases where similar vesting orders were made, and concluded that the orders sought by the Public Trust were appropriate. Therefore, the court granted the orders as requested by the Public Trust.