Re McMillan

[2021] NZHC 1497

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-29

[2021] NZHC 1497

UNDER

the Trusts Act 2019

ON THE APPLICATION

of DIXON McMILLAN Trustee of the Token Trust, Wellington

Applicant

On the papers
Counsel:	R J Chiu for Applicant
Judgment:	22 June 2021

JUDGMENT OF SIMON FRANCE J

[1]                 The Token Trust holds assets remaining from a toy token scheme (akin to a gift card scheme) once operated through the Toyworld chain of retain stores. The tokens were bought in varying dollar amounts to be used as a gift for children.

[2]The structure was:

(a)a company called Nationwide Toy Retailers Ltd (Nationwide) (being a company owned by Toyworld retailers) sold the tokens to Toyworld stores;

(b)the proceeds of these sales were held by Nationwide in a discrete account;

(c)the Toyworld stores sold the tokens to customers; and

Re Application of Dixon McMillan [2021] NZHC 1497 [22 June 2021]

(d)when the tokens were subsequently redeemed at a store, the store was reimbursed by Nationwide.

[3]In 1999 the assets of Nationwide were placed into the Token Trust.

[4]                 In 2001 Nationwide was placed into receivership. In 2003 it was liquidated and in 2004 removed from the Companies Register.

[5]                 The trustees advertised a final redemption date for tokens of 31 December 2002. Redemptions were nevertheless honoured beyond that, with the last redemption being 4 December 2009.

[6]The trustees have resolved to wind up the Trust. Difficulties arise because:

(a)the Trust Deed requires remaining assets to be distributed to Nationwide; and

(b)the Trust Deed cannot be amended without the consent of Nationwide.

[7]                 The Trustees seek orders from the Court under s 133 of the Trusts Act 2019. Its predecessor (s 66 of the Trustee Act 1956) was considered by Kós J in New Zealand Māori Council v Foulkes where the broad equitable jurisdiction it recognises was affirmed.1 I am content to adopt its approach, noting it is important that here there is no disputed fact or outcome.

[8]                 Orders should be made. It is unlikely that any further redemption will be sought. The Chief Financial Officer of the company now operating Toyworld stores has confirmed redemption of any tokens will not be sought from the Trust in the unlikely event a Toyworld store accepts a now long-out-of-date token. The sum held by the Trust is very modest.

[9]                 The Trustees intend to distribute the assets to two hospice charities that assist children and young persons. This is an appropriate resolution.

1      New Zealand Māori Council v Foulkes [2014] NZHC 1777 at [44].

Orders

[10](a)     That the final assets of the Token Trust be distributed to charities that provide services for children –

(i)Rainbow Place, a hospice for children and young persons in Hamilton; and

(ii)Hospice Southland, a hospice facility in Invercargill that provides services for children and young persons; and

(b)That the Token Trust be wound up;

(c)Leave to apply for further directions if needed.

Simon France J

Solicitors:

Simpson Grierson, Wellington for Applicant