M I Clifford Trust 2

[2021] NZHC 1931

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-557

[2021] NZHC 1931

UNDER

the Trusts Act 2019

IN THE MATTER

of an application for approval to vary the M I Clifford Trust 2

AND

IN THE MATTER

of an application of DEIDRE COWLISHAW WOOD and PAUL JOSEPH DORRANCE

as trustees of the M I Clifford Trust 2 Applicants

Hearing:	(Determined on the Papers)
Counsel:	A V Foote and A J Hopping for Applicants
Judgment:	10 December 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

RE M I CLIFFORD TRUST 2 [2021] NZHC 1931 [10 December 2021]

[1]                 The trustees of the M I Clifford Trust 2 (the Trust) intend to file an originating application seeking orders approving proposed variations to the Trust.

[2]                 As there are unborn beneficiaries of the Trust, the applicants rely on s 124 of the Trusts Act 2019 (the Act), which permits the Court to approve variations of trusts on behalf of unborn beneficiaries.

[3]                 To use the originating application procedure, leave is required in these circumstances but I am satisfied that leave is appropriate. The test for whether leave should be granted under r 19.5 of the High Court Rules 2016 is whether it is in the interests of justice. The interests of justice mean that the Court must secure the just, speedy and inexpensive determination of the proceeding.1

[4]                 Counsel for the applicants characterises the application as administrative in nature as it does not affect the rights of existing beneficiaries, although it will affect the rights of the unborn beneficiaries. It is not an application that will require full pleadings or discovery. All living beneficiaries, as I understand it, are content with the application.

[5]                 Accordingly, I am satisfied that use of the originating application procedure is appropriate and I order accordingly.

[6]                 To facilitate the application to the Court to approve the variation under s 124 of the Act, the applicants seek that an experienced solicitor, Mr William Palmer of Buddle Findlay, Christchurch, be appointed to prepare a report on behalf of the unborn beneficiaries. Mr Palmer is appointed accordingly. His costs will be for the Trust.

[7]                 Directions as to service are sought, being that the application be served by email upon the nine living beneficiaries. It is said those beneficiaries are in regular email contact with the trustees.

[8]                 Personal service would normally be required. The applicants do not say that the beneficiaries have consented to be served by email. However, in the interests of

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

avoiding unnecessary costs, I make the direction sought at para 1.3 of the application seeking leave to bring an originating application dated 9 December 2021 but with the proviso that the trustees are to obtain an acknowledgment of receipt from each of   the beneficiaries of service. If a beneficiary does not acknowledge receipt of the email sending the proceedings, then personal service will be required. An affidavit of service in due course should be completed.

Associate Judge Lester

Solicitors:
Duncan Cotterill, Christchurch