Fabish

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2017-443-24 [2017] NZHC 1045

IN THE MATTER of section 51 of the Trustee Act 1956

PAUL WILLIAM FABISH, DENISE MAY LOVERIDGE, THOMAS RUPERT LOVERIDGE, ANDREW KELVIN MCELROY, DOROTHY MICHELLE OAKES, TANIA MAREE SIMPSON, CINDY LEE BALDWIN AND KEVIN RONALD BENNETT

Applicants

On the papers

Counsel:

A R H Laurenson and R E Eaton for Applicants

Judgment:

22 May 2017

JUDGMENT OF THOMAS J

[1] The Committee Members of the Tariki Hall Committee Incorporated (the Committee) apply without notice for leave to commence proceedings by way of an originating application and for an order that they be appointed trustees of the Tariki Hall Trust (the Trust) pursuant to s 51 of the Trustee Act 1956.

[2] The application is supported by an affidavit of one of the Committee Members, Ms Loveridge, which provides important information in support of the application.

[3] The Committee manages the Tariki hall (the hall) and has done so for many years. The Committee considers their founding document is the Trust Deed dated
17 April 1911. All the original trustees are deceased and no new trustees have been appointed. The certificate of title for the land on which the hall sits remains in the
names of the original trustees.

FABISH [2017] NZHC 1045 [22 May 2017]

[4] The Committee carries out administrative business regarding the hall and regularly meets to discuss the use, servicing and financing of the hall. I note the Committee now finds itself in a difficult position, given the expenses required to maintain the hall exceed the income the Committee has managed to generate. The Committee has resolved that a sale of the hall would be in its best interests. It has also resolved to donate the sale proceeds to charity and then wind up the Committee (and presumably also the Trust).

[5] It is not possible to take any of these steps until the Trust has active trustees.

[6] This Court has the power to appoint new trustees when it is expedient to do so, even where there is no existing trustee.1

[7] I am satisfied from the evidence that it is expedient to appoint new trustees to the Trust. I am also satisfied it is impracticable to do so without the assistance of the Court, having referred to the appointment provision of the Trust Deed and the absence of current trustees. In all the circumstances it is appropriate the new trustees are all of the members of the Committee, being those who have for a number of years managed the hall. In doing so they have effectively acted in accordance with the terms of the Trust.

[8] The trustees will need to consider the terms of the Trust and their powers before taking steps to dispose of the hall.

[9] For the reasons given, the application is granted. Accordingly, I order: Paul William Fabish, Denise May Loveridge, Thomas Rupert Loveridge, Andrew Kelvin McElroy, Dorothy Michelle Oakes, Tania Maree Simpson, Cindy Lee Baldwin and Kevin Ronald Bennett are appointed as trustees of the Tariki Hall Trust.

Thomas J

Solicitors:
Govett Quilliam, New Plymouth for Applicants

1 Trustee Act 1956, s 51(1).

CaseChat Overview and Summary

The applicants, who are the Committee Members of the Tariki Hall Committee Incorporated, sought leave to commence proceedings to be appointed as trustees of the Tariki Hall Trust. The original trustees of the Trust are deceased and no new trustees have been appointed, which has left the Trust without active trustees. The applicants, who have managed the Tariki Hall for many years, sought to be appointed as trustees to enable them to take steps to dispose of the hall, including selling it and donating the proceeds to charity.

The court was required to determine whether it was expedient to appoint new trustees to the Trust and whether it was appropriate to appoint the applicants as trustees. The court noted that it has the power to appoint new trustees when it is expedient to do so, even where there is no existing trustee. The court was satisfied that it was expedient to appoint new trustees to the Trust and that it was impracticable to do so without the assistance of the Court. The court also considered the appointment provision of the Trust Deed and the absence of current trustees.

The court concluded that it was appropriate to appoint the applicants as trustees because they had effectively managed the hall for many years and had acted in accordance with the terms of the Trust. The court ordered that the applicants be appointed as trustees of the Tariki Hall Trust. The trustees will need to consider the terms of the Trust and their powers before taking steps to dispose of the hall.

This case is a useful reminder of the power of the Court to appoint new trustees to a Trust where there are no existing trustees. It also highlights the importance of having a clear appointment provision in the Trust Deed and the need for trustees to act in accordance with the terms of the Trust. The case provides guidance on the factors that the Court will consider when deciding whether to appoint new trustees and who should be appointed as trustees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

On the papers
Counsel:	A R H Laurenson and R E Eaton for Applicants
Judgment:	22 May 2017