Whitehouse

[2023] NZHC 495

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-551

[2023] NZHC 495

UNDER THE

Charitable Trusts Act 1957

IN THE MATTER OF

a charitable trust created by the will of RENE WHITEHOUSE

BETWEEN

AGOTA MATRAVERS and JAQUALEEN

ANNE KRAUZE as trustees of the H & R WHITEHOUSE FUND

Applicants

Hearing:	13 March 2023
Appearances:	A G F Lang for Applicants
Judgment:	13 March 2023

JUDGMENT OF DUNNINGHAM J

[1]                 This is an application for approval of a scheme under the Charitable Trusts Act 1957. It seeks to:

(a)vary the powers of the trustees to allow them to dispose of the surplus trust fund to the Gillies McIndoe Research Institute (Gillies), after payment of costs, debts and liabilities; and

(b)vary the powers of the trustees to expressly allow them to wind up the remaining trust once the surplus trust fund has been transferred to Gillies.

RE WHITEHOUSE [2023] NZHC 495 [13 March 2023]

[2]The purposes of the Trust are to:

(a)benefit children and young adults with severe birthmarks; and

(b)provide for a sum of approximately $4,000 for each child or young adult for the treatment of the birth marks, particularly on the face, neck, legs or arms.

[3]                 The grounds on which the application are made, are firstly that the purpose of the trust has become redundant due to advances in the medical treatment of port wine stains. It has therefore become impossible or impracticable or inexpedient for the Trust to carry out its charitable purpose. Indeed, as it explained in the affidavit of Agota Matravers, one of the trustees, the trustees have for some time been unable to identify appropriate beneficiaries and no applications have met the trust criteria for more than 20 years.

[4]                 The applicant says that Gillies is a charitable organisation with purposes that follow the purpose of the Trust as closely as possible which makes it an appropriate recipient of the Trust funds. Gillies undertakes funding and research in a range of medical areas, including in reconstructive plastic surgery.

[5]                 The application notes that while there is an implicit power to wind up the Trust under the Trust Deed, because of the general powers to redistribute trust assets on winding up, there is no express power to do so. The administration of the Trust assets and the carrying out of the Trust would be facilitated by varying the powers of trustees.

[6]                 The application has been forwarded to the Attorney-General, and I have on file a report by the Attorney-General under s 35 of the Charitable Trusts Act 1957. It essentially endorses the application with the report writer saying:

… I am satisfied that the scheme is a proper one; that it is not contrary to law or policy or good morals; that the scheme can be approved by the Court under Part 3 of the Act; that the proposed purpose is charitable within the meaning of Part 3 and can be carried out; and that the requirements of Part 3 have been complied with in respect of the scheme up to the date of this report.

[7]                 The application has been publicly advertised as is confirmed in the affidavit of Greer Cameron Collinson affirmed on 9 March 2023. No opposition to the application has been received.

[8]                 Accordingly, I make the orders sought as set out in the draft order which was filed on 24 November 2022 along with the application.

Solicitors:

Young Hunter, Christchurch