Archive for

Trust derived from expectation

The lesser known “common intention constructive trust” is a difficult construct to appreicate.  However, this form of trust although formally “institutional” rather than “remedial” can provide a solution where no other legal construct can. Part one of the lesson – the constructive trust Constructive trusts often had their genesis in relationship breakdowns where a legislative … Continue reading

Limitation of liability lost in the fine print

The most recent version of the standard agreement for the sale and purchase of land includes a standard trustee limitation of liability clause (clause 16).  However, this clause is only available to trustees who cannot benefit from the trust.  So where trustees wish to limit their liability to the assets of a trust, and those … Continue reading

Trustees liable for tax on serial property purchases

Trading up, more room for the kids, closer to the office, away from the traffic noise, life style opportunity … moving on, moving up, trading down – common reasons to buy and sell. When does a regular replacement of the family home equate to a business enterprise?  And if that enterprise is carried out by … Continue reading

A ruse is not a sham even if it is …

This blog could equally be entitled “Distribute in haste, repent at leisure”.  It concerns a case about a relationship breakdown and some ill-conceived tinkering with trust property in an attempt to better protect some trust assets.  The means by which this tinkering was carried out included a purported distribution of trust assets to a new trust, together with … Continue reading

Details, devils and directors

The devil is in the detail.  Sometimes, so is the GST.  Prior to compulsory zero rating of land transactions it was common to use the GST-refund to fund the deposit.   However, in the event the sale did not go ahead, the GST needed to be re-paid.  So if the deposit was forfeited then, well, that … Continue reading

Variation of Charitable Trust

About half of all New Zealand registered charities are trusts.  Some settled on carefully considered terms, some not so much. The problem when a Charitable Trust needs amendment as it cannot fulfil its original purposes (no matter how arcane) is that unlike discretionary family trusts, charitable trusts cannot necessarily be varied by the trustees at … Continue reading

Trustees have big shoes to fill

Relationships and trusts are poor bedfellows.  I have said this before.  Another way of expressing the sentiment is that trustees and spouses/partners are equally poor bedfellows.  The difficulty being that the dividing line between Mrs Smith – wife and Mrs Smith trustee can blur.   The consequence of this blurring, and the hard cold cost, was sheeted … Continue reading

Appointor update

Rules called the associated person rules apply to tax certain capital gains derived from land due to associations between builders, property developers and dealers.  These rules were strengthened with general effect from the start of the 2010/11 income year. An unintended consequence of the amendments to the associated person rules was that the rules could also apply to … Continue reading

Honesty is more than just a virtue

Being a trustee is a risky, and at times, costly business.  This has been confirmed in the Court of Appeal decision in Spencer v Spencer, which largely upholds the High Court decision. The facts of this case are discussed in Trustees, be afraid, very very afraid. While the Court of Appeal decision does clarify some … Continue reading