William Manukau Compensation Trust

[2025] NZHC 2706

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2025-419-0257

[2025] NZHC 2706

UNDER

the Trusts Act 2019

IN THE MATTER

of an application for orders varying the terms of the William Manukau Compensation Trust

BY

JOAN LUCILLE TAPU and REDOUBT

TRUSTEES XXII LIMITED as trustees of the WILLIAM MANUKAU COMPENSATION TRUST

Applicants

Hearing:	On the papers
Counsel:	JKH Hooper for applicants
Date of judgment:	18 September 2025

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 18 September 2025 at 3.30pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors:
Edmonds Judd, Te Awamutu

RE WILLIAM MANUKAU COMPENSATION TRUST [2025] NZHC 2706 [18 September 2025]

[1]                 I have the trustees’ 12 August 2025 without notice applications for permission to commence proceedings by originating application and then for approval of a variation of trust under ss 122 and 124 of the Trusts Act 2019, respectively being by unanimous consent of beneficiaries or on behalf of beneficiaries who lack capacity.

Background

[2]                 The trust at issue is of a fund established in 1973  for  the  benefit  of  William Wilson Manukau, also known as Wiremu Wirihana Manukau, from settlement of claims arising from Mr Manukau’s childhood traumatic brain injury, leaving him intellectually impaired and now without capacity. The fund presently amounts to some $118,000 administered by the trustees.

[3]                 The terms of the trust, settled by this Court’s 1 August 1973 orders (and varied on 20 July 1978),1 make no provision for what is to occur in the event of Mr Manukau’s death. The 1973 settlement was for the fund’s disposition to Mr Manukau when he turned 20 years old; the 1978 variation continued the trust thereafter until further order of this Court.

[4]                 The trustees propose variation, on Mr Manukau’s death and after satisfaction of any debts, for the trust’s assets to be disposed to one of the trustees—his sister, Joan Lucille Tapu, being Mr Manukau’s only surviving immediate family member and his property manager and welfare guardian (or, if she predeceased him, her children)— and the trust terminated.

Approach

—to without notice applications

[5]                 I may determine the application for leave can properly be dealt with without notice if I am satisfied here an enactment expressly permits the application to be made without serving notice of it.2 Leave to commence proceedings by originating

1      Manukau v Griffin SC Hamilton A299/68, 1 August 1973.

2      High Court Rules 2016, r 7.46(3) and (5).

application may be sought without notice.3 I therefore am so satisfied and determine accordingly.

—to originating applications

[6]The Court of Appeal has observed:4

Proceedings in the High Court are normally commenced by filing a statement of claim. However, consistent with the overall objective of the Rules to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application, rr 19.2 to 19.4 provide that various proceedings must be commenced by originating application. These include applications made pursuant to various specified enactments. … However, r 19.5 provides that the court may permit any proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application if it is in the interests of justice to do so.

A proceeding brought under ss 122 or 124 of the Trusts Act is not one of those mentioned in rr 19.2 to 19.4. But, under r 19.5(1), it may be commenced by originating application “if … in the interests of justice”.

[7]                 The originating application procedure is “generally used for cases where it is not necessary to have full pleadings and interlocutory steps such as discovery for the proper determination of the issues”.5 Such a case:6

… tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is a possibility of crossclaims or counterclaims.

“[A]ppropriate case management directions” can address such interlocutory issues as may arise,7 but the originating application procedure “is nevertheless, in relation to contested proceedings not listed in r 19.2, an exceptional procedure”.8 The “truncated

3      High Court Rules, r 19.5(2).

4      Siemer v Attorney-General [2022] NZCA 200, (2022) 26 PRNZ 113 at [2], citing the High Court Rules, r 1.2.

5      Fisk v [E] Ltd [2014] NZHC 2797 at [18] citing Groves v TSSN Ltd (in Liq) [2012] NZHC 2402, [2013] 1 NZLR 111 at [25], and Hong Kong and Shanghai Banking Corporation v Erceg (2010) 20 PRNZ 652 (HC) at [26]. See also Public Trust v Kain [2018] NZHC 1547 at [35].

6      Hong Kong and Shanghai Banking Corporation v Erceg, above n 5, at [25].

7      Fisk v [E] Ltd, above n 5, at [19].

8      Hong Kong v Shanghai Banking Corporation v Erceg, above n 5, at [26].

procedure” is not to be used “as a short cut for urgent cases”,9 and “[i]t is not appropriate where factual issues are in dispute”.10 Finally, “the Court will generally adopt a conservative approach” to interlocutory applications in proceedings commenced by originating application.11

—to variations of trust

[8]                 At their request and with trustees’ agreement, terms of a trust may be varied by unanimous consent of all beneficiaries and/or—if there are people who lack capacity or may acquire a beneficial interest in the future, and/or future persons who may acquire a beneficial interest—with the Court’s approval of the variation on behalf of those latter beneficiaries.12

[9]                 The Court’s approval may be sought under s 124 of the Trusts Act, which provides:

Power of court to approve termination, variation, or resettlement of trust

(1)    The court may, on behalf of any of the beneficiaries described in subsection (2) who has an interest in the property of a trust, approve the termination, variation, or resettlement of the trust.

(2)    The beneficiaries are—

(a)a beneficiary who lacks capacity:

(b)a person who may acquire a beneficial interest at a future date or on the happening of a future event or on becoming a member of a certain class of persons:

(c)a future person who may acquire a beneficial interest.

(3)    An application for an order of approval may be made by—

(a)the trustees or any one of them:

(b)any person with a beneficial interest in the trust property.

(4)    On an application for an order of approval, the court must take into account each of the following factors:

(a)the nature of any person’s interest in the trust property and the effect of the proposed order on that interest:

9 At [26].

10     Jones v O’Keeffe [2019] NZCA 222, (2019) 24 PRNZ 529 at [52].

11     Public Trust v Kain, above n 5, at [35].

12     Trusts Act 2019, s 122.

(b)the benefit or detriment that may result to any person with an interest in the trust property if the court makes or refuses to make the proposed order:

(c)the intentions of the settlor of the trust in settling the trust, if it is practicable to ascertain those intentions.

(5)    The court must not make an order of approval if its effect would be to reduce or remove any vested interest in the trust property.

(6)    An order of approval binds the person on whose behalf it is made and takes effect without any further step.

[10]              Section 124 calls on the Court’s supervisory capacity.13 I adopt Mander J's identification of the applicable principles, as modified by s 124:14

(a)    The power to approve a variation is discretionary.

(b)    The court may, on behalf of any beneficiary described in s 124(2) who has an interest in the property of a trust, consider any proposal to terminate, vary or resettle a trust.

(c)    The court’s discretion is to be exercised with reference to the factors identified in s 124(4), including the intentions of the settlor, to the extent these can be ascertained.

(d)    The court can approve a scheme which conflicts with the intentions of the settlor but should not do so lightly.

(e)    The court considers the trust provisions afresh if circumstances have arisen which were not foreseen or may not have been foreseeable at the time the trust was established.

(f)     The court is able to approve an arrangement to the detriment of any person on whose behalf the court is giving consent, provided the effect of the orders would not reduce or remove a vested interest in the trust property.

(g)    The court is to take a wide approach to benefits and detriments and arrangements and must consider the arrangements as a whole in a practical and business-like way. Indirect and intangible benefits and detriments are relevant, including the welfare and honour of the family.

(h)    Difficulties may be met by amendments to the proposal or covenants by persons benefitting to make good losses to the disadvantage of other beneficiaries.

(i)     An order approving a proposed variation may be conditional.

13 See Talijancich v Talijancich [2021] NZHC 753 at [13].

14 Gavin v Gavin [2021] NZHC 550 at [15], referring to McKnight v Craig [2010] 3 NZLR 860 (HC) at [8] (citing Re Greenwood [1988] 1 NZLR 197 (HC); Re Byrne HC Wellington CIV-2003-485- 0167, 25 May 2004; and Ewington v Schulz HC Auckland CIV-2008-404-6596, 5 May 2009).

Discussion

—permission to commence by originating application

[11] The substantive application precisely reflects the type of case for which the originating application procedure is apt. It arises under a specific statutory provision. The variation for approval is clearly defined and confined. Factual issues are not in dispute. Except for the application for permission to commence proceedings by originating application, no other interlocutory applications are apparent. There is precedent.15 The exception is justified. For the reasons I have explained at [6]–[7] above, it then is in the interests of justice to permit the applicant to commence its proceeding by originating application. I additionally am satisfied by Mr Manukau’s lack of capacity, and Ms Tapu’s consent as his property manager and welfare guardian, no other party requires to be served.

—approval of variation

[12]              I construe the trust to embody this Court’s inferred intention to settle the fund to provide for Mr Manukau’s welfare during his lifetime. Taking  into account the     s 124(4) factors and the trust’s purpose, I am satisfied Mr Manukau would consent to the proposed variation if properly advised. I also am satisfied the variation is not to reduce or remove any vested interest in the trust property. And I am satisfied in any event the variation is not otherwise to Mr Manukau’s detriment.

Result

[13]              On behalf of Mr Manukau, I approve variation of the trust in the terms expressed at sub-subparas 1.a.i.–v. of the originating application dated 12 August 2025. The trustees are indemnified from the trust fund for their reasonable costs and expenses incurred on the application.

—Jagose J

15     Re Craig [2019] NZHC 2386; Gray v Heighway [2020] NZHC 473; Cooney v St Columban’s Mission Society of Lower Hutt [2020] NZHC 1958; and Law v George [2020] NZHC 3084.