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Corporate trustee, General, Removal of trustees, Trustee Act, Trustee retirement

So close to Jasmine you can smell it

CDT 12 Limited v Millar doesn’t answer the Jasmine question, but does raise considerable doubt as to whether Jasmine applies in New Zealand.  For the background to the “Jasmine” issue, see Two trustees go down to the woods … one is discharged, one is not and Exit stage left.

Mallon J’s decision on the papers in CDT 12 Limited v Millar includes a comprehensive consideration of the history to the earlier UK equivalent of the Trustee Act 1956 and whether the term “individuals” only means natural persons.  Mallon J, without deciding the point notes, at [29] that:

“I am therefore not persuaded that CDT is necessarily correct in its submission that the Trust was required to have two natural persons as trustees. The alternative view, that “individual” in ss 43 and 45 includes “body corporate”, seems to me to be the stronger one acknowledging, however, that I have not had full argument on the issue.”

The decision being on the papers, is perhaps lamentable because as noted at [27] “The proceeding before me is, however, not an ideal one for determining the issue. That is because I am considering the matter in an uncontested “on the papers” hearing and therefore without the benefit of full argument.”

Nevertheless, this decision represents the closest to a determination of the question.  The following paragraphs [28] to [31] from the decision are illustrative of the reasoning, and [Editor’s note: in line with the reasoning in Two trustees go down to the woods … one is discharged, one is not].

[28]      Against that context, I consider it is sufficient for present purposes to note my view that it is not    inevitable that s 45(3) would be interpreted in the same way as its equivalent provision was in   Jasmine Trustees Ltd. This is because:

(a)        In the United Kingdom the position between 1899 and 1925 was that a body corporate                      could be a trustee along with a natural person under the relevant statutory power for                    retiring and appointing trustees. As is acknowledged in Jasmine Trustees Ltd, there is                 no apparent rationale for why Parliament would have provided for this in 1899 only to               close it back up two decades later. The amended wording therefore seems not to have                   been motivated by any need to address any mischief that arose from the former                                 wording. That is not a strong position from which to favour a narrow meaning of                              “individual” which gave rise to “curious anomalies”

(b)        A similar history arose in New Zealand albeit that the period during which a body                                     corporate could be a trustee along with one natural person was longer. Under the                     equivalent New Zealand provisions it was open from 1905 to 1956 for a body corporate              to a be a trustee along with a natural person. No reason is apparent for why Parliament             would have wished to have closed off what was the position in this country for over 50                    years. Rather, the Trustee Act 1956 (NZ) adopted the wording of the 1925 UK Act to                give New Zealand the benefit of UK cases and text books modified to suit New Zealand                 circumstances.

(c)        It is not clear that the use of “person” in other parts of the Trustee Act 1956 (NZ) meant               that “individual” must have been used in order to exclude body corporates from that                  term. An alternative view is that “individual” was chosen to align with the use of this                   term in the Bodies Corporate (Joint Tenancy) Act 1899 (UK) and/or that it was a way                  of distinguishing between a trust corporation (as defined), who could be a sole trustee              in all cases, and all other trustees. Certainly, the Act contemplated that body corporates                    could be trustees (s 48) but, unless they were a trustee corporate, they could not be                  the sole trustee.

(d)        The legislation was amended in the UK by the Trusts of Land and Appointment of                     Trustees Act 1996 (UK). The UK position now is that “individuals” has been changed                       to “persons”, thus negating the effect of the finding in Jasmine Trustees Ltd. The                                    proposed new Trustee Act will also amend the position if enacted by leaving it up to                      the trust-creating document whether there needs to be a certain minimum number of                   trustees. There is no mention of the word “individuals” and provisions dealing with               numbers of trustees simply use the word “trustees” indicating that body corporates may                      be trustees unless a contrary intention is expressed in the deed. This confirms that no              legislative purpose has been discerned for the meaning of “individuals” adopted in                      Jasmine Trustees Ltd, or at least that the purpose was not one that should prevail.

(e)        The edition of Pettit on Equity published prior to the enactment of the Trusts Land and                   Appointment of Trustees Act 1996 (UK) said this of the UK provision:

It will be observed that the latter part of s 37(1)(c) states that a trustee will not be discharged unless there will be as trustees ‘either a trust corporation or at least two individuals’. Prima facie the word ‘individual’ is not apt to include a corporate body, and on that basis if, for example, the trustees comprise two corporate trustees (neither of which is a trust corporation) and two individual trustees, it would at first sight seem that if one of the individual trustees desired to be discharged from the trust under s 36, the appointment of a third corporate trustee (not being a trust corporation) to replace him would be ineffective because there would not then be either a trust corporation or at least two individuals to act as trustees to perform the trust. It is submitted that such an unsatisfactory result could and should be avoided by adopting a purposive approach and giving a slightly strained, though not unprecedented, meaning to ‘individual’ as including, in this context, a corporate body. Thus Lord Templeman, giving the advice of the Privy Council in Société United Docks v Government of Mauritius in a different context referred to the argument ‘that a different result should follow … because section 3 … referred to the right of “the individual”. But no logical distinction’, he continued, ‘can be drawn between the individual protected by section 3 and “the person” protected by the remaining sections … Both expressions include a corporation where the context so allows, as it does in the present instance’ If ‘individual’ is so construed in s 37(1)(c) there would be a consistent application throughout the 1925 property legislation of the principle that beneficiaries should have the protection of two trustees (whether natural or artificial legal persons) unless the sole trustee is a trust corporation.

 

 

(f)         The purposive approach is the modern approach to statutory interpretation. Jasmine                        Trustees Ltd gave effect to the natural meaning of “individuals” when there was no                 discernible legislative purpose for a change from the historic position and it gave rise                    to “curious anomalies”.In contrast, the view expressed in Pettit on Equity quoted above                favours a purposive approach.

[29] I am therefore not persuaded that CDT is necessarily correct in its submission that the Trust was required to have two natural persons as trustees. The alternative view, that “individual” in ss 43 and 45 includes “body corporate”, seems to me to be the stronger one acknowledging, however, that I have not had full argument on the issue.

[30] Even if it were the position that two natural persons are required, I an also not necessarily persuaded that all Trust appointments from the time NITL appointed Helen and Megan Millar as new trustees are invalid. This is because s 43(1) contemplates a trustee acting alone in appointing replacement trustees. Specifically, it allows the person nominated in the trust deed to exercise the power of appointment “or if there is no such person or no such person is able and willing to act, then the surviving or continuing trustees for the time being” may make the appointment. Ms Ashurst expressly renounced her power of appointment when she signed the Deed dated 29 June 2010 following her separation from Mr Miller.

[31] It may therefore be that, even if the Jasmine Trustees Ltd interpretation were applied, all that would be needed to rectify the position would be for CDT and Megan Millar to appoint a third person as trustee. Here, however, there are difficulties. This is because CDT has raised with Megan Millar its concerns about the improper use of trust funds, Megan Millar has refused to engage with CDT about this and CDT considers it can no longer work with Megan Millar. She has also declined to take part in this proceeding. On this basis, I accept it is expedient to appoint a new trustee or new trustees, and it is difficult, or impracticable so to do without the assistance of the court. I also accept that NZGT should be appointed in the place of CDT and Megan Millar, and in the place of Mr Millar, Ms Ashurst and NITL if they have not been validly replaced by CDT and Megan Millar.

References:

  • CDT 12 Limited v Millar [2019] NZHC 606
  • Oldfield v Oldfield [2019] NZHC 492
  • Greenpeace of New Zealand Inc v Electoral Commission [2014] NZHC 2135, [2014] 3 NZLR 802
  • Philip H Pettit Equity and The Law of Trusts (7th ed, Butterworths, London, 1993) at 333-334
  • Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis NZ, Wellington, 2015) at 223-248
  • Jasmine Trustees Ltd v Wells & Hind [2017] EWHC 38 (Ch), [2007] 3 WLR 810

 

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