Albert Alloo & Sons Trustee Company (2009) Limited v Irvine

[2021] NZHC 860

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2021-412-24

[2021] NZHC 860

UNDER

the Trusts Act 2019

AND

IN THE MATTER

of the NT BUTTERFIELD FAMILY TRUST

BETWEEN

ALBERT ALLOO & SONS TRUSTEE

COMPANY (2009) LIMITED, as trustees of the NT Butterfield Family Trust
Applicant

AND

PATRICIA MARY IRVINE, as trustee of the NT Butterfield Family Trust

Respondent

Hearing:	(On the papers)
Counsel:	M G Kirkland for the Applicant
Judgment:	22 April 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 22 April 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 22 April 2021

ALBERT ALLOO & SONS TRUSTEE COMPANY (2009) LIMITED v IRVINE [2021] NZHC 860

[22 April 2021]

[1]    The applicant, Albert Alloo & Sons Trustee Company (2009) Limited (the company) has applied for leave to commence this proceeding by way of originating application. Directions in respect of service are also sought.

[2]    The applicant is one of two trustees of the NT Butterfield Family Trust (the Trust). The respondent is the other trustee of the Trust.

[3]    Since August 2015, the company has sought to resign as a trustee of the Trust. It has apparently been agreed by the company that it will only be permitted to resign when a replacement trustee is agreed upon and appointed. It is this precondition to the company’s resignation as trustee that has created the practical difficulty this proceeding seeks to address. Despite extensive efforts, the parties have been unable to reach agreement on who should be appointed replacement trustee.

[4]    It is against that impasse of approximately five years that the company has sought to resolve matters by applying for orders under pt 5 of the Trusts Act 2019. The company’s proposed pleading seeks orders appointing the Public Trust as replacement trustee, or that a receiver be appointed to administer the Trust. Orders are also sought in respect of outstanding fees owed to the company and in relation to costs.

[5]    While pt 18 of the High Court Rules 2016 prescribes a procedure for proceedings solely within the Court’s equitable jurisdiction, such does not prevent the Court granting leave under r 19.5 for use of the originating application procedure for such proceedings.1

[6]    Leave may be granted for use of the originating application procedure if it is in the interests of justice. Such means that the Court must secure the just, speedy and inexpensive determination of the proceeding.2

1      Public Trust v Kain [2018] NZHC 1547 (2018) 4 NZTR 28-012..

2      Solar Bright Ltd v Martin [2019] NZHC 300 at [18], citing High Court Rules 2016, r 1.2.

[7]    The company submits this is not a proceeding where discovery will be required, nor one where it is expected there will be a need for interlocutory applications, and nor one where the issues are complex or require full pleadings to allow the issues to be understood.

[8]    The issue is a short one. The parties, that is the trustees and the beneficiaries, cannot agree on the identity of a replacement trustee. After five years of attempting to resolve the matter through agreement, the company considers that it requires the intervention of the Court to bring the matter to a conclusion.

[9]    It is in the interests of all parties that the issue of the replacement trustee and/or the future of the Trust be resolved in an  efficient manner so  as to keep costs to       a minimum. The use of the originating application procedure will assist that.

[10]   In the circumstances, I am satisfied that it is in the interests of justice for the proceeding to be commenced by way of an originating application and leave is granted accordingly.

Directions as to service

[11]   The application also seeks directions under r 7.43A as to service of the proceeding on the beneficiaries of the Trust. Apparently, all the beneficiaries are represented by a solicitor who has been corresponding with the parties over the time referred to.

[12]   Given it is essentially the interests of the beneficiaries and the respondent that are in conflict it is appropriate that the beneficiaries be served.

[13]   I do not make a direction that the beneficiaries may be served by sending the papers to their solicitor.   Counsel should obtain an agreement to that effect from   the solicitor acting for the beneficiaries.

[14]   I have not been informed as to whether there are minor beneficiaries or if there are any issues in relation to different classes of beneficiaries and I simply reserve leave for any party to seek further directions as to service should issues in that regard arise.

Associate Judge Lester

Solicitors:

Race Douglas Burke, Dunedin