Much to be-devil

The background to Duffy J’s 2022 decision in Addleman v Lambie Trustee Limited is set out at [1] and [5] as follows:

For further background see It’s mine said the trustee, all mine and Disclosure request declined.

The decision raises interesting procedural questions regarding the application for the appointment of a receiver when as noted at [11] “.. Despite the Independent Trustee being joined in this proceeding as a defendant/trustee on 1 July 2022 Mrs Addleman has taken no steps to join the Independent Trustee as a respondent to the directions application.”

The matter was raised in the context of the court’s concerns regarding an argument for resisting the provision of an undertaking / security was that the the terms of the Lambie Trust requires unanimity, but there was not unanimous decision of Lambie Trustee Limited and the Independent Trustee to file the application for an undertaking.

The court’s view in this regard was that it was not persuaded that Lambie Trustee Limited’s ” decision to bring the undertaking application is a trust decision that requires unanimity of the trustees before it can be a valid decision.”

This segues to the court’s view that the Lambie Trustee is acting in personam and not as a trustee, which raises interesting questions regarding rights of indemnity.

Also relevantly, as noted at [34]:

Ultimately the applications for security and restraint were declined.

While the facts are case specific the decision warrants careful reading.

References:

• Addleman v Lambie Trustee Limited [2022] NZHC 2975
• Lambie Trustee Limited v Addleman [2021] NZSC 54