Setter v

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-6

[2021] NZHC 1381

UNDER Part 18 of the High Court Rules 2016 and the Trusts Act 2019

IN THE MATTER OF

an application without notice for directions as to service and representation

IN THE MATTER OF

an application to the Court for authorisation to vary a trust deed

BETWEEN

ALISTAIR JAMES SETTER, PATRICK MARCUS PEACOCK, KAREN ELIZABETH MIDDELBERG, ELIZABETH CLEMENT JANE GRAY TOSWILL, CALLUM LEICESTER GRAY, CATERINE ANNE AVERY, AND GEORGE HUGH WILLIAMS AS TRUSTEES OF CENTRAL HAWKES BAY CONSUMERS POWER TRUST

Applicants

Hearing: On the Papers

Counsel:

H J P Wilson for Applicants G Kelly for Beneficiaries

Judgment:

10 June 2021

RESULTS JUDGMENT OF ISAC J

[1] This proceeding concerns an application for authorisation to vary a trust deed of the Central Hawkes Bay Consumers Power Trust. Following a minute of 11 May 2021, I received further submissions from counsel on 2 June 2021.

Setter [2021] NZHC 1381 [10 June 2021]

[2] In a memorandum today, counsel enquired whether a judgment will issue shortly given that the returning officer supervising an election of trustees to the Trust will need to know the number of nominations to call by 18 June 2021.

[3] In light of that, I confirm the variation of the trust deed — as annexed to the affidavit of Alistair James Setter at AJS-2 — is granted with reasons to follow.

Isac J

Solicitors:
Dentons, Kensington Swan, Wellington for Applicants

CaseChat Overview and Summary

The High Court of New Zealand, in the Napier Registry, heard an application concerning the Central Hawkes Bay Consumers Power Trust. The applicants, who are the trustees of the trust, sought authorization to vary the trust deed. This application was made without notice and under Part 18 of the High Court Rules 2016 and the Trusts Act 2019. The beneficiaries of the trust were represented by counsel, who submitted further submissions on 2 June 2021, following an earlier minute from 11 May 2021. The urgency of the application was highlighted due to the need for the returning officer to know the number of nominations for an election of trustees by 18 June 2021.

The legal issues before the court involved determining whether the proposed variation of the trust deed was appropriate and if authorization should be granted. The court had to consider the implications of the variation on the trustees' duties and the beneficiaries' rights, as well as the procedural fairness and the necessity for expeditious decision-making. The applicants argued that the variation was necessary for the proper administration of the trust and to address pressing issues affecting the beneficiaries.

In the judgment, Justice Isac confirmed that the variation of the trust deed, as detailed in the affidavit of Alistair James Setter, was granted. The reasons for this decision would be provided in a subsequent memorandum. The court recognized the urgency of the situation, taking into account the impending election of trustees and the need for timely decision-making. The authorization to vary the trust deed was granted, and the returning officer was informed of the decision to facilitate the nomination process for the trustee election.

The court's decision was communicated promptly to ensure that the returning officer could proceed with the trustee election in accordance with the updated trust deed. The judgment emphasized the importance of adhering to the statutory requirements and the need to balance the interests of the trustees and beneficiaries in trust administration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	Part 18 of the High Court Rules 2016 and the Trusts Act 2019
IN THE MATTER OF	an application without notice for directions as to service and representation
IN THE MATTER OF	an application to the Court for authorisation to vary a trust deed
BETWEEN	ALISTAIR JAMES SETTER, PATRICK MARCUS PEACOCK, KAREN ELIZABETH MIDDELBERG, ELIZABETH CLEMENT JANE GRAY TOSWILL, CALLUM LEICESTER GRAY, CATERINE ANNE AVERY, AND GEORGE HUGH WILLIAMS AS TRUSTEES OF CENTRAL HAWKES BAY CONSUMERS POWER TRUST Applicants

Hearing:	On the Papers
Counsel:	H J P Wilson for Applicants G Kelly for Beneficiaries
Judgment:	10 June 2021