ADR guidance

In Wiggins v Wiggins the court explores the parameters of section 145 of the Trusts Act, which provide that the Court, may, at the request of a Trustee or a beneficiary or on its own motion, submit any internal matter to an ADR process other than in the situation where the terms of the Trust indicate a contrary intention.

Importantly an order under section 145 is discretionary. As noted at [20] “… There are many factors that can be taken into account in the exercise of that discretion. In S v N Wylie J listed some of those matters as being cost, confidentiality, speed, the seriousness and complexity of the matter, the suitability of the proposed mediator, the wishes of the parties, the wishes of the settlor (if known) finality and enforceability.

By way of background:

In dismissing the application for ADR factors taken into account included:

• the Court’s consideration that referring the matter to mediation would be futile as the mediation would not bind the nominee company
• the Court’s view that as any mediation would not be enforceable against the nominee company it would not be final and accordingly the costs of mediation would be wasted
• the Court’s view that there was no particular urgency that warranted ADR

Also see S v N, which is possibly the first case considering an application for ADR under the (then) new section 145 of the Trusts Act 2019. In that case the Court declined the application in part because or the observation that mediation is an inherently consensual process and that “Forcing an unwilling party, with the benefit of a protection order, to attend a mediation insisted on by her abuser is not an attractive proposition”.

For the alternative view see Honest Reckoning.

For guidance regarding ADR see CCH Trust Series 2024 – Trust Disputes.

References:

• Wiggins v Wiggins [2024] NZHC 863
• S v N [2021] NZHC 2860
• Wright v Pitfield [2022] NZHC 285