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FFP Trustee (NZ) Limited v Peng [2024] NZHC 2957 (11 October 2024)

Last Updated: 22 October 2024

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 11 October 2024 at 11.00am.

Pursuant to Rule 11.5 of the High Court Rules.

.............................. Registrar/Deputy Registrar

Counsel/Solicitors:

N R Williams, Barrister, Auckland Luke Cunningham Clere, Auckland

FFP TRUSTEE (NZ) LTD v PENG [2024] NZHC 2957 [11 October 2024]

AND LOW TAEK SZEN

Fourth respondent

AND LOW TAEK JHO

Fifth respondent

AND GLOBAL ONE REAL ESTATE LIMITED

Sixth respondent

AND SCOTTS HIGHPARK (SINGAPORE) LIMITED

Seventh respondent

AND ST THOMAS WALK (SINGAPORE) LIMITED

Eighth respondent

AND BRANKSOME CREST (HK) LIMITED

Ninth respondent

• [1] As duty judge, I have the applicants’ without notice application for leave to commence this proceeding by way of originating application and, if so, then for directions under s 133 of the Trusts Act 2019 and otherwise as to service and confidentiality of supporting affidavits and memorandum.

Background

• [2] The intended proceeding is the intended final step in resolving the applicants’ trusteeship of particular assets, in terms of a June 2024 settlement entered into between the trusts’ trustees, settlor and beneficiaries and the United States of America. The originating application would seek the Court’s ‘blessing’ of that “momentous” resolution.¹

1. Public Trustee v Cooper [2001] WTLR 901 (Ch) at 922–924, referred to with approval in Chambers v S R Hamilton Corporate Trustee Ltd [2017] NZCA 131, [2017] NZAR 882 at [24] and most recently adopted in Perpetual Trust Ltd v Cooke [2024] NZHC 1779 at [24].

• [3] Previous orders of this Court to facilitate earlier attempted and partial resolutions effectively now are to be perfected in terms of the intended proceeding.² The respondents all consent to its grant, and other potentially interested parties have raised no objections to it.

Originating application procedure

• [4] A proceeding in which relief is claimed solely under the Trusts Act is subject to pt 18 of the High Court Rules 2016.³ Rule 18.4(1) requires a proceeding under that Part be “commenced by statement of claim ... accompanied by an application for directions as to service and representation under rule 18.7”. But r 18.4(2) provides:

The application of this Part to a proceeding does not prevent the commencement of that proceeding by originating application if it is eligible to be so commenced under Part 19, in which event this Part does not apply.

• [5] The Court of Appeal recently observed:⁴

Proceedings in the High Court are normally commenced by filing a statement of claim. However, consistent with the overall objective of the Rules to secure the just, speedy and inexpensive determination of any proceeding or interlocutory application, rr 19.2 to 19.4 provide that various proceedings must be commenced by originating application. These include applications made pursuant to various specified enactments. ... However, r 19.5 provides that the court may permit any proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application if it is in the interests of justice to do so.

A proceeding brought under s 133 of the Trusts Act is not one of those mentioned in rr 19.2 to 19.4. But, under rr 18.4(2) and 19.5(1), it may be commenced by originating application “if the interests of justice permit it”.⁵

2. FFP Trustee (NZ) Ltd v Peng [2019] NZHC 3301; FFP Trustee (NZ) Ltd v Peng [2020] NZHC 927; FFP Trustee (NZ) Ltd v Peng [2021] NZHC 3507; FFP Trustee (NZ) Ltd v Peng [2023] NZHC 2216; and FFP Trustee (NZ) Ltd v Global One Real Estate Limited [2023] NZHC 2314.

³ High Court Rules 2016, r 18.1(b)(xiii).

4. Siemer v Attorney-General [2022] NZCA 200, (2022) 26 PRNZ 113 at [2], referring to High Court Rules 2016, r 1.2.

⁵ Public Trust v Kain [2018] NZHC 1547, (2018) 4 NZTR 28-012 at [21].

• [6] The originating application procedure is “generally used for cases where it is not necessary to have full pleadings and interlocutory steps such as discovery for the proper determination of the issues”.⁶ Such a case:⁷

... tends to be an application under a specific statutory provision, where the issue that arises can be clearly defined, and the issues confined. The procedure is not well suited to the determination of substantive rights involving the application of common law doctrines as distinct from statutory tests. It is not well suited to cases involving multiple parties, and cases where there is a possibility of crossclaims or counterclaims.

“[A]ppropriate case management directions” can address such interlocutory issues as may arise,⁸ but the originating application procedure “is nevertheless, in relation to contested proceedings not listed in r 19.2, an exceptional procedure”.⁹ The “truncated procedure” is not to be used “as a shortcut for urgent cases”,¹⁰ and “[i]t is not appropriate where factual issues are in dispute”.¹¹ Finally, “the Court will generally adopt a conservative approach” to interlocutory applications in proceedings commenced by originating application.¹²

Discussion

• [7] Being satisfied r 19.5(2) of the High Court Rules 2016 expressly permits the application to be made without serving notice of the application, I determine the application can properly be dealt with without notice.

• [8] I also am satisfied, given the exceptional nature of the undisputed settlement, the interests of justice permit commencement of the substantive proceeding by originating application and grant leave accordingly.

• [9] Finally, recognising “the trustees are prima facie in a much better position than the court to know what is in the best interests of the beneficiaries”,¹³ I also am satisfied

6. Fisk v X [2014] NZHC 2797 at [18] citing Groves v TSSN Ltd (in liq) [2012] NZHC 2402, [2013] 1 NZLR 111 at [25], and Hong Kong v Shanghai Banking Corporation v Erceg [2010] NZHC 1352; (2010) 20 PRNZ 652 (HC) at [26]. See also Public Trust v Kain, above n 5, at [35].

⁷ Hong Kong v Shanghai Banking Corporation v Erceg, above n 6, at [25].

⁸ Fisk v X, above n 6, at [19].

⁹ Hong Kong v Shanghai Banking Corporation v Erceg, above n 6, at [26].

¹⁰ At [26].

¹¹ Jones v O’Keeffe [2019] NZCA 222, (2019) 24 PRNZ 529 at [52].

¹² Public Trust v Kain, above n 5, at [35].

¹³ Public Trustee v Cooper, above n 1, at 922–924.

— in part on the basis of evidence carrying “the requisite quality of confidence”,¹⁴ of which I can identify no legitimate public interest in its content — disposition of the assets in terms of the settlement and consequential termination of the trusts is within the trustees’ powers.

• [10] Having regard for this Court’s prior orders, and the affidavits of Andrew Childe dated 8 October 2024, Robin WAG Rathmell dated 8 October 2024 and Oliver Rocos dated 7 October 2024, the orders and directions sought at the originating application’s paras 6(a)–(b), 9(a)–(e) and 12 may properly be made.

Result

• [11] I order in terms of the draft orders filed.

—Jagose J

¹⁴ Skids Programme Management Ltd v McNeill [2012] NZCA 314, [2013] 1 NZLR 1 at [78], citing

Coco v A N Clark (Engineers) Ltd [1969] RPC 41 (Ch) at 47.