Disposal of surplus assets: Ngati Mutana O Wharekauri Trust

The High Court case In the matter of Ngāti Mutunga O Wharekauri Trust (in liquidation) and Ngāti Mutunga O Wharekauri Incorporated (in liquidation) considers the application by liquidators for directions as to how surplus assets of a charitable trust and an incorporated society are to be distributed. There is little case law on the application of s 27 of the Charitable Trusts Act 1957 (and the equivalent provision of the Incorporated Societies Act), the provisions that apply to the distribution of a charitable trust’s or society’s assets following winding up.

In this case the Court referred to Re Mercury Bay Undenominational Church Association Trust Board Incorporated where the Court noted the proposed distribution was consistent with the cy-pres principle, that is for purposes as nearly consistent as possible with the intent of the original settlor. In Re Wellington Nurses Education Trust Board Incorporated Dobson J also approved distribution of trust assets to an organisation sharing similar purposes to the original, now defunct, trust.

In the present case Kos J found that the objectives of the proposed “New Trust” was the entity appearing to have objectives as nearly consistent as possible to those of the Original Trust and Society and accordingly should be the recipient of the assets.

Given the significant number of trusts evident in New Zealand, clear guidance on end stage matters are increasingly important and relevant.





[17] Accordingly there will be orders as sought under s 27 of each Act approving the distribution of the surplus assets of the Society and the Original Trust to the New Trust.


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