Basically …

Kain v Public Trust relates to an application for disclosure of a deed that brought forward the distribution date of the Te Mata Property Trust (the Trust). This deed distributed the entirety of the Trust’s assets and had the effect of terminating certain beneficial interests.

The background of the matter is set out in [4] and [5] of the judgment as follows:

Almost 15 years later the Kain siblings sought disclosure of the distribution deed on the basis set out in [7]:

Relevantly, the presumptions regarding disclosure pursuant to the Trusts Act 2019 did not apply in 2008, where disclosure was an exercise of discretion with no presumption for or against (see Erceg v Erceg).

The current statutory regime is explained at [8] as follows:

The Kain siblings’ application was premised in part on the basis that the distribution deed was “basic trust information.” However, the clear view of the court was that this was not correct. As noted at [15]:

The standing of the Kain siblings also needed to be confirmed given the lapse of time and the appointment of the trust capital referred to in [4] above. In this regard Mander J noted at [29] to [31] that:

Mander J then went on to consider the correct approach to the factors required to be considered pursuant to section 53 of the Trusts Act. Importantly, Mander J did not consider that the Trusts Act had no application notwithstanding that the distribution deed was entered into in 2008. With respect to the application of the factors the following obiter observations at [36] to [39] are illustrative:

The temporal aspect of the Kain siblings’ application is explored at [41] as follows:

After considering the application of the relevant factors from section 53 of the Trusts Act Mander J concluded that disclosure was not “… reasonably necessary to enable the beneficiaries to enforce the Trust. With the passage of time, it is not apparent there is any interest left to enforce. The basis for the siblings’ enquiry is at best speculative. Further, it is not apparent that any possible vindication of suspected alleged invalidity would result in a change to the parties’ present position…”

It may be that this decision must be read in line with its own facts and the temporal considerations.

References:

• Kain v Public Trust [2023] NZHC 2535
• Lynton Tucker, Nicholas Le Poidevin and James Brightwell Lewin on Trusts (20th ed, Sweet & Maxwell, London, 2020) at [21-041]
• Erceg v Erceg [2017] NZSC 28
• Trusts Act 2019
• Lambie Trustee Limited v Addleman [2021] NZSC 54