New Zealand
| Jurisdiction | United Kingdom |
| Pages | 511-529 |
| Author | Andrew Butler,Nathaniel Walker |
29
NEWZEALAND
Andrew Butler and Nathaniel Walker
A. Introduction 29.01
B. Jurisdiction 29.03
e Hague Convention on the Law
Applicable to Trusts and on eir
Recognition 29.03
Conict of Law Rules 29.04
Additional Conventions 29.05
C. Recognition and Enforcement of
Foreign Judgments and Orders 29.06
D. Reserved Powers 29.13
Protectors 29.13
Custodian and Advisory Trustees 29.16
Sham 29.21
E. Asset Protection and Insolvency 29.27
Dispositions Designed to Prejudice
Creditors 29.27
Co- operation in Insolvency Matters 29.28
F. Removal and Retirement of Trustees
and Protectors 29.33
No Statutory Power to Remove Protectors;
but Inherent Jurisdiction Available 29.33
Powers to Remove Trustees 29.34
Voluntary Retirement of Trustees 29.40
G. Indemnities 29.44
H. Rights to Information 29.47
Condentiality Statutes 29.47
Beneciaries’ Rights to Information 29.48
I. Guidance to Trustees, Protectors,
or Enforcers 29.53
J. Involvement of Charitable Interests 29.57
K. Alternative Dispute Resolution 29.58
L. Procedural Issues 29.60
Court Structure 29.60
Local Bar 29.61
Appea ls 29.62
Costs 29.63
M. Cases of Note 29.64
N. Special L egislation 29.66
New Zealand Equivalent of Section 57
Trustee Act 1925 29.71
Variation 29.72
Tax Information Exchange Laws 29.73
A. Introduction
New Zealand is a common law jurisdiction with a strong domestic and oshore trust
industry. New Zealand trust law is a mixture of common law, with statutory overlay pro-
vided by the general Trustee Act 1956 (‘Trustee Act’), and more specialist provision made
for particular types of trusts through statutes such as the Māori Land Act 1993 and the
Charitable Trusts Act 1957. Asubstantial body of New Zealand case law exists on most
aspects of trusts law due to the extensive use of trusts in New Zealand to hold family
and business assets. ere is also a specialist law report series, the New Zealand Trusts
Reports.
ere is a recently enacted statute (the Trusts Act 2019)(the ‘New Trusts Act’)), which
will substantially codify the law of trusts. e New Trusts Act was preceded by a New
Zealand Law Commission project that examined the state of trust law in New Zealand
under both common law and statute. Ultimately the Commission proposed codi-
cation and some changes to existing common law rules and statutory provisions. e
Justice Select Committee recommended that it be enacted with changes proposed by that
29.01
29.02
New Zealand In: International Trust Disputes. Second Edition. Edited by: Steven Kempster, Morven McMillan,
Alison Meek, Oxford University Press (2010). © Oxford University Press.
DOI: 10.1093/oso/9780198832737.003.0029
512 :
Committee. e New Trusts Act will take eect on 31 January 2021 and will apply to all
trusts regardless of the date of settlement (subject to some minor transitional provisions).
is chapter focuses on the law as it currently stands, with reference to the law under the
New Trusts Act throughout.
B. Jurisdiction
e Hague Convention onthe Law Applicable toTrusts and
oneirRecognition
e Hague Convention on the Law Applicable to Trusts and on their Recognition 1985
(the ‘Hague Convention’) has not been adopted in New Zealand. e New Zealand Law
Commission, an independent Crown entity that reviews, reforms, and develops New
Zealand law, originally recommended ratication of the Hague Convention in 2002. e
Commission has since recommended that the question of ratication be revisited following
its broader review of the law of trusts.1
Conict ofLawRules
In New Zealand, the jurisdiction of the High Court over a defendant is based on service;
if service occurs in accordance with the provisions of the High Court Rules 2016, the New
Zealand court will have jurisdiction.2 (Assuming service in accordance with the High
Court Rules, a defendant may still, however, seek to have the proceeding stayed or dis-
missed on the basis of forum non conveniens.3) Many of the trust specic issues relating
to jurisdiction, such as whether to follow the Board’s approach in Crociani v Crociani to
interpreting jurisdiction clauses in trust deeds, remain to be decided.4 In the absence of
a clause in the trust deed providing for the trust to be governed by New Zealand law, its
proper law will be determined in a manner familiar to common law practitioners:charac-
terization of the claim and application of the relevant choice of law rule (by reference to
the specied connecting factors).5 Trusts are typically governed by the system of law with
which the trust is most closely connected.6
AdditionalConventions
ere are no other relevant conventions which have been adopted in New Zealand.
1 Law Commission, Review of the Law of Trusts:Preferred Approach Paper (NZLC IP31, 2012).
2 High Court Rules 2016, Part6, Subpart 4. Note that special rules apply to the service of proceedings in
Australia, see the Trans- Tasman Proceedings Act 2010. For further information, see Nathaniel Walker in Newman,
Enforcement of Foreign Money Judgments (November 2018).
3 Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599, at paragraph28]. Although
jurisdiction and forum non conveniens are separate concepts, there is signicant cross- over in terms of the factors
relevant to both enquiries.
4 See eg discussion in Ivanishvili v Credit Suisse [2018] NZHC 1755, at paragraph 67.
5 See, generally, Dicey, Morris & Collins on the Conict of Laws, 15th edn (2012) Sweet & Maxwell:London.
6 Ibid [29- 019]; Duke of Marlborough v Attorney- General (No 1) [1945] Ch 78, [1945] 1 All ER 165 (CA).
29.03
29.04
29.05
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