Wayne Hayward Family Trust - [2022] NZHC 1522

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-242 [2022] NZHC 1522

UNDER of the Trusts Act 2019

IN THE MATTER

of the Wayne Hayward Family Trust

IN THE MATTER

of an application for directions and orders by Hayward Trustee Services Limited

BETWEEN

HAYWARD TRUSTEE SERVICES LIMITED

Applicant

Hearing: (Determined on the papers)

Counsel:

A S Butler and K Ewer for Applicant

Judgment:

29 June 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Directions as to service and judgment in relation to application for leave to use originating application procedure)

WAYNE HAYWARD FAMILY TRUST re HAYWARD TRUSTEE SERVICES LIMITED [2022] NZHC 1522 [29 June 2022]

Introduction

[1] The applicant, Hayward Trustee Services Limited, is the sole trustee of the Wayne Hayward Family Trust (the Trust).

[2] This proceeding has been brought by the trustee because of concerns about whether previous trustee retirements and appointments were valid. The Trust has significant assets and hence the trustee wishes to be sure the Trust’s affairs are on sure footing.

[3] Counsel for the trustee has filed a comprehensive memorandum dealing not only with the preliminary procedures dealt with in this Judgment, but also the history of the change of trusteeship, potential issues those changes create and why the trustee considers those steps were valid.

Use of the originating application procedure

[4] A trustee seeking directions is not a proceeding that can be commenced as of right by originating application pursuant to r 19.2 of the High Court Rules 2016 (the Rules).

[5] Under r 19.5 the Court may, if it is in the interests of justice, permit a proceeding that may not be commenced as of right as an originating application to nonetheless use that procedure. In this context, the interests of justice means the Court must secure the just, speedy and inexpensive determination of the proceeding.1

[6] Counsel advise that the adult beneficiaries of the Trust are appraised of and are generally supportive of the present application. They are, or are expected to be, represented by counsel. Accordingly, this is unlikely to be a contested proceeding.

1 Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26].

[7] I agree with Mr Butler, counsel for the applicant, that this is a proceeding where interlocutory procedures are unlikely to be needed and that it is likely to be procedurally straightforward. In substance, the proceeding will involve counsel taking the Court through the terms of the Trust Deed and the timing and processes of the resignation and appointment of new trustees to examine the validity of each of those steps. They will essentially be matters of record.

[8] I am satisfied it is appropriate that leave be granted for this proceeding to be commenced by way of originating application and leave is granted accordingly.

Directions as to service

[9] The application seeks that the original trustees of the Trust, Mr Argyle and Mr Falloon, be served. That is appropriate. I direct

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 1522
Decision Date: 29 June 2022

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application concerning the Wayne Hayward Family Trust, brought by Hayward Trustee Services Limited. The applicant, which is the sole trustee of the trust, sought directions and orders due to concerns regarding the validity of previous trustee retirements and appointments. Given the trust's significant assets, the trustee wished to ensure the trust's affairs were on a solid footing. The application was brought under the Trusts Act 2019, and the case was determined on the papers.

The primary legal issue before the court was whether the application could be commenced as an originating application, despite not being a proceeding that could be commenced as of right. The court needed to decide if it was in the interests of justice to permit the proceeding to use the originating application procedure. The court also needed to determine appropriate directions for the service of the application to the relevant parties.

Associate Judge Lester granted leave for the proceeding to be commenced by way of originating application, finding that it was a proceeding where interlocutory procedures were unlikely to be needed and that it would likely be procedurally straightforward. The court considered the application to be in the interests of justice, as it would secure a just, speedy and inexpensive determination of the proceeding. The court also made directions as to the service of the application to the relevant parties, including the original trustees of the trust, Mr Argyle and Mr Falloon, and Mr Wayne Hayward, his wife, and children. The grandchildren of Mr Wayne Hayward were not required to be served as their interests could be appropriately represented by their parents. The court also directed that counsel consider whether a litigation guardian would be required for Mr Hayward due to his dementia.

This case demonstrates the court's willingness to grant leave for proceedings to be commenced by way of originating application when it is in the interests of justice to do so. The decision also highlights the importance of ensuring that the trust's affairs are on a solid footing, particularly when dealing with significant assets.

Orders