Wayne Hayward Family Trust

[2022] NZHC 1522

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-242 [2022] NZHC 1522

UNDER

of the Trusts Act 2019

IN THE MATTER

of the Wayne Hayward Family Trust

IN THE MATTER

of an application for directions and orders by Hayward Trustee Services Limited

BETWEEN

HAYWARD TRUSTEE SERVICES LIMITED

Applicant

Hearing:	(Determined on the papers)
Counsel:	A S Butler and K Ewer for Applicant
Judgment:	29 June 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Directions as to service and judgment in relation to application for leave to use originating application procedure)

WAYNE HAYWARD FAMILY TRUST re HAYWARD TRUSTEE SERVICES LIMITED [2022] NZHC 1522 [29 June 2022]

Introduction

[1]    The applicant, Hayward Trustee Services Limited, is the sole trustee of the Wayne Hayward Family Trust (the Trust).

[2]    This proceeding has been brought by the trustee because of concerns about whether previous trustee retirements and appointments were valid. The Trust has significant assets and hence the trustee wishes to be sure the Trust’s affairs are on sure footing.

[3]    Counsel for the trustee has filed a comprehensive memorandum dealing not only with the preliminary procedures dealt with in this Judgment, but also the history of the change of trusteeship, potential issues those changes create and why the trustee considers those steps were valid.

Use of the originating application procedure

[4]    A trustee seeking directions is not a proceeding that can be commenced as of right by originating application pursuant to r 19.2 of the High Court Rules 2016 (the Rules).

[5]    Under  r 19.5  the  Court   may,  if  it  is  in  the   interests  of  justice,  permit a proceeding that may not be commenced as of right as an originating application to nonetheless use that procedure. In this context, the interests of justice means the Court must secure the just, speedy and inexpensive determination of the proceeding.1

[6]    Counsel advise that the adult beneficiaries of the Trust are appraised of and are generally supportive of the present application. They are, or are expected to be, represented by counsel. Accordingly, this is unlikely to be a contested proceeding.

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

[7]    I agree with Mr Butler, counsel for the applicant, that this is a proceeding where interlocutory procedures are unlikely to be needed and that it is likely to be procedurally straightforward. In substance, the proceeding will involve counsel taking the Court through the terms of the Trust Deed and the timing and processes of the resignation and appointment of new trustees to examine the validity of each of those steps. They will essentially be matters of record.

[8]    I am satisfied it is appropriate that leave be granted for this proceeding to be commenced by way of originating application and leave is granted accordingly.

Directions as to service

[9]    The application seeks that the original trustees of the Trust, Mr Argyle and Mr Falloon, be served. That is appropriate. I direct accordingly.

[10]   The application seeks that Mr Wayne Hayward, his wife and children be served. Again, that is appropriate. I direct accordingly.

[11]   In relation to Mr Wayne Hayward’s grandchildren, it is sought that they are not served as their interests can be  appropriately represented by their parents.  I agree.   I direct that the grandchildren of Mr Wayne Hayward need not be served.

[12]   The material provided to the Court confirms Mr Hayward has dementia. Counsel are to consider whether a litigation guardian will be required for Mr Hayward. He is not named  as  a  party,  but  nonetheless  counsel  are  to  consider  whether  Mr Hayward’s health means any further arrangements in respect of his involvement in the proceeding are required.

[13]   Accordingly, directions as to service are made in terms of para 1(a) of the originating application dated 15 June 2022.

[14]   Counsel will now need to attend to service. The normal course of events would see this matter set down for a call in the Duty Judge’s List in approximately one month’s time. Mr Butler, counsel for the applicant, has sought that the Court consider dealing with the matter “on the papers”. The Registrar is to set the matter down in the

Duty  Judge’s  List   in  approximately  one   month’s  time.    Mr Butler  is  to  file   a memorandum with the Court prior to the application that updates the position as well as provides an affidavit of service.

Associate Judge Lester

Solicitors:

K Ewer, Regent Court, Christchurch

Copy to counsel:
A S Butler, Barrister, Thorndon Chambers, Wellington