Trevor Wilson Trustee Limited

[2022] NZHC 97

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2022-476-2

[2022] NZHC 97

UNDER

the Trusts Act 2019 and the Charitable Trusts Act 1957

IN THE MATTER

of the TREVOR WILSON CHARITABLE TRUST [No. 2]

BETWEEN

TREVOR WILSON TRUSTEE LIMITED

Applicant

Hearing:	(Determined on the papers)
Counsel:	J W A Johnson and W L Porter for Applicant
Judgment:	4 February 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

RE TREVOR WILSON TRUSTEE LIMITED [2022] NZHC 97 [4 FEBRUARY 2022]

[1]                 The applicant, Trevor Wilson Trustee Limited, seeks leave to utilise the originating application procedure for this proceeding.

[2]                 The applicant seeks directions under s 133 of the Trusts Act 2019 as to whether it is able to rely on a clause in the Deed of Trust of the Trevor Wilson Charitable Trust [No. 2] dated 23 April 2008 (the Trust Deed) empowering the trustee to make amendments to the Trust Deed. Should the Court confirm it is not appropriate for the trustees to use the amending provision in the Trust Deed, the applicant seeks approval of a scheme under pt 3 of the Charitable Trusts Act 1957 to give effect to the same amendments proposed to be made pursuant to the empowering provision.

[3]                 While an application seeking approval of a scheme under the Charitable Trusts Act may be made as of right by way of originating application, the application for directions cannot, and requires the Court’s leave.

[4]                 I agree with Mr Johnson, counsel for the trustee, that it is more efficient for both applications to be considered together in the one proceeding.

[5]                 Given the application for directions concerns the interpretation and application of a provision in the Trust Deed, I agree with the submission that full pleadings will not be necessary to define the issue in the directions application. I also agree it is unlikely there will be any factual disputes in relation to that aspect of the application. Again, given the nature of the application, interlocutory applications are unlikely, as is discovery.

[6]                 I agree it is in the interests of the just, speedy and inexpensive determination of the directions application that it be brought by way of originating application and  I grant leave accordingly.

[7]                 The applicant then seeks directions as to service and I agree it is appropriate to serve the parties named at para [2](k) of the application dated 14 January 2022 and at para [2](l).

[8]                 Counsel make the point that it is unnecessary to serve any other person as the proposed scheme under the Charitable Trusts Act must be advertised in the Gazette and three times in a local newspaper.1 Any person who wishes to oppose the proposed scheme is entitled to oppose it by giving written notice to the Registrar, the trustee and the Attorney-General.2

[9]Accordingly, directions as to service are made as sought.

Associate Judge Lester

Solicitors:

Argyle Welsh Finnigan, Ashburton

Copy to counsel: JWA Johnson and W L Porter, Barristers, Auckland

1      Charitable Trusts Act 1957, s 36.

2      Section 37.