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Directions, Trustees, Trusts, Trusts Act, Trusts Act 2019

Directions under the Trusts Act

The decision in Re Tauranga Energy Consumer Trust may on first blush appear esoteric and outside the mainstream. However, the decision warrants careful reading as it is one of the few cases to date to consider default duties imposed by the Trusts Act 2019 in a practical construct. The case relates to a proposed restructure involving the wind up of a charitable trust and variation of the Tauranga Electricity Consumer Trust.

The issues for the Court are illustrative of the approach taken to what is essentially an application for a momentous decision to be approved (sometimes referred to “blessed”). As set out at [10]:

The background of the case is fact specific and while important in that context, does not limit the relevance of the decision.

Importantly counsel (Jane Anderson QC) was appointed to assist the court – not to act for the beneficiaries who were essentially represented by the Attorney General – but to collate and communicate opposing positions.

Trustees seek directions pursuant to section 133 of the Trusts Act to have the benefit of the protections of section 134 of the Trusts Act.

The principles in directions applications are set out at [90] as follows:

The approach to be taken where directions are sought is set out at [95] to [97] as follows:
The case also provides useful guidance on the principles that apply to the interpretation of trust deeds. As set out at [109] as follows:
The court found the trustees had exercised duties for a proper purpose (section 27 of the Trusts Act), that the trustees had not failed to avoid conflict (section 34 of the Trusts Act) and that they had acted impartially (section 35of the Trusts Act). This aspect of the decision warrants careful reading noting the fact specific nature of the allegations.

References:

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