scholarly journals The Illusory Trust Doctrine: Formal or Substantive?

2020 ◽  
Vol 51 (2) ◽  
pp. 193
Author(s):  
Mark Bennett
Keyword(s):  
New Zealand ◽  
Privy Council ◽  
Cook Islands ◽  
Trust Law ◽  
Court Of Appeal

"A document is put before us. Does it or does it not create a trust?" This article considers the illusory trust doctrine (ITD) and claims that although the ITD has been criticised as doctrinally unfounded and therefore based in substantive, non-legal reasons rather than pre-existing law, there are formal reasons of trusts law to support it. It begins by considering Atiyah and Summers' concepts of form and substance, and then examines how they apply in the context of equity (in general), and then trusts law (in particular). It then briefly considers a number of recent decisions on the ITD: the four cases constituting the Clayton v Clayton litigation in New Zealand, Pugachev and the Cook Islands Court of Appeal and Privy Council decisions in Webb v Webb. Finally, it analyses these ITD decisions using the form and substance distinction, concluding that it is arguable that the ITD is grounded in principles of established trust law, as opposed to purely substantive reasoning.

scholarly journals There is no Such Thing as a Sham Trust

2013 ◽  
Vol 44 (1) ◽  
pp. 115
Author(s):  
BoHao (Steven) Li
Keyword(s):  
New Zealand ◽  
Legal Issues ◽  
Starting Point ◽  
Bilateral Transaction ◽  
Appeal Decision ◽  
The Law ◽  
Trust Law ◽  
Court Of Appeal ◽  
Law Commission

The Court of Appeal decision in Official Assignee v Wilson is the leading New Zealand case on "sham trusts". Obiter, O'Regan and Robertson JJ held that for a sham trust to exist, the settlor and trustee must have a common intention to not create a trust. Post-Wilson, debate continues over the precise elements that render a trust a sham. The Law Commission suggested that the sham doctrine, as a means of analysing the validity of an express trust, may not be the best approach. A better starting point would be a return to the certainty of intention requirement. In arguing that the Law Commission's recommendation is correct, this article will discuss three legal issues: whether an express trust is a unilateral or bilateral transaction; whether the excluded evidence has always been part of the objective intention requirement; and whether the legislative and policy factors have made foreign trust law distinct from New Zealand trust law. Finally, this article will expand on the test proposed by the Law Commission.

scholarly journals Hohepa Wi Neera: Native Title and the Privy Council Challenge

2004 ◽  
Vol 35 (1) ◽  
pp. 73
Author(s):  
John William Tate
Keyword(s):  
New Zealand ◽  
The Other ◽  
Privy Council ◽  
Native Title ◽  
Other Hand ◽  
Solicitor General ◽  
The One ◽  
Court Of Appeal

The case of Hohepa Wi Neera illustrates an unprecedented clash of judicial approaches to native title claims. On the one hand, the New Zealand Court of Appeal was determined to continue the line of reasoning most notably enshrined in Wi Parata v Bishop of Wellington. On the other hand, the Privy Council, in Nireaha Tamaki v Baker had partially overturned Wi Parata by insisting that native title fell within the jurisdiction of the courts, at least when prerogative powers were not involved. The author argues that in Hohepa Wi Neera, the Court of Appeal quite deliberately tried to avoid the implications of the Privy Council's decision. In doing so, it exhibited a marked "colonial consciousness" which it was prepared to defend even to the extent of open breach with the Privy Council. The 1912 case of Tamihana Korokai v Solicitor-General, however, showed the extent to which the Court of Appeal was capable of shedding that "colonial consciousness" and embracing the earlier Privy Council ruling. The author demonstrates that this apparent irony sheds light on our understanding of the earlier cases.

More about illusory trusts: is “tantamount” to ownership the same as “ownership”? The Privy Council takes a step too far

2021 ◽  
Author(s):  
Joel Nitikman
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Privy Council ◽  
Cook Islands ◽  
The Supreme Court

Abstract In Webb v. Webb,1 a decision of the Privy Council on appeal from the Cook Islands, the Board2 had to consider a number of issues arising from matrimonial proceedings. One of the issues was whether Mr Webb had created a valid trust or whether he had retained such extensive powers in relation to the trust that the trust was an “illusion”. The Board held that the trust was invalid. In doing so, the Board purported to follow the reasoning of the New Zealand Supreme Court in another matrimonial decision, Clayton v. Clayton,3 about which I have written before.4 But, for the reasons discussed below, in my opinion, the Board in Webb went beyond what the Supreme Court decided in Clayton. I believe that the Board has taken a step too far in its reasoning.

FIXED AND FLOATING CHARGES

2001 ◽  
Vol 60 (3) ◽  
pp. 441-492
Author(s):  
Philip R. Wood
Keyword(s):  
New Zealand ◽  
Fixed Charge ◽  
Privy Council ◽  
Council Decision ◽  
Inland Revenue ◽  
A Charge ◽  
A Company ◽  
Court Of Appeal ◽  
At Will

The Privy Council decision in Agnew v. Inland Revenue Commissioner [2001] B.C.C. 252 (on appeal from the New Zealand Court of Appeal in Re Brumark Investments Ltd.) decides that where a charge over the uncollected book debts of a company leaves the company free to collect and then to use the proceeds for its own benefit in the ordinary course of business, the charge is inevitably a floating charge and not a fixed charge, whatever the debenture might say. The court’s reason for this, in short, was that it makes no commercial sense to separate a book debt from its proceeds and so, if the company can use the proceeds at will, then the charge on the debt itself must be a floating charge.

New Zealand Court of Appeal: Judgment in Controller and Auditor–General V. Sir Ronald Dawson

1997 ◽  
Vol 36 (3) ◽  
pp. 721-743
Author(s):  
Michael Bvers
Keyword(s):  
New Zealand ◽  
Judicial Review ◽  
House Of Representatives ◽  
Income Tax ◽  
Cook Islands ◽  
Tax Haven ◽  
Inland Revenue ◽  
Auditor General ◽  
Court Of Appeal

On February 16, 1996 the New Zealand Court of Appeal rendered judgment on three applications for judicial review arising out of what had come to be known in New Zealand as the “Winebox Inquiry”. The Inquiry began as the result of certain documents being tabled (in a winebox) before the New Zealand House of Representatives. It was alleged that the documents implicated several New Zealand companies in the evasion of New Zealand income tax by the use of the Cook Islands as a tax haven, and that the New Zealand Inland Revenue Department and Serious Fraud Office had been incompetent at the least in failing to detect and prevent the abuse.

Proprietary Claims and Their Priority in Insolvency

1995 ◽  
Vol 54 (2) ◽  
pp. 377-429 ◽  
Author(s):  
A. J. Oakley
Keyword(s):  
Hong Kong ◽  
New Zealand ◽  
Attorney General ◽  
Public Prosecutor ◽  
Privy Council ◽  
The Public ◽  
Official Position ◽  
The Government ◽  
Court Of Appeal

Two recent successful appeals to the Privy Council from the Court of Appeal of New Zealand have once again emphasised the importance of proprietary claims in conferring priority in insolvency over the claims of the general creditors of a bankrupt. Attorney-General for Hong Kong v. Reid1 concerned land in New Zealand purchased with the proceeds of bribes accepted by a Hong Kong Public Prosecutor as an inducement to exploit his official position to obstruct the prosecution of certain criminals. The Privy Council imposed a constructive trust where the Court of Appeal of New Zealand had, in accordance with precedent,2 denied one and thus enabled the Government of Hong Kong to recover the land in priority to any other creditors of the Public Prosecutor. In Re Goldcorp Exchange3 concerned the liquidation of a gold-dealer which had offered its purchasers the option of leaving their gold in its custody as “non-allocated bullion”.

The Unity of the Common Law and the Ending of Appeals to the Privy Council

2005 ◽  
Vol 54 (1) ◽  
pp. 197-210 ◽  
Author(s):  
KJ Keith
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Privy Council ◽  
English Court ◽  
James Cook ◽  
Final Volume ◽  
The Common ◽  
The Law ◽  
Court Of Appeal ◽  
Do So

In 1769, by a nice coincidence, Captain James Cook made landfall in New Zealand, the first British mariner to do so, and William Blackstone published the final volume of hisCommentaries on the Law of England. Blackstoněs discussion of the application of the law of Englandto newly acquired colonies is not completely coherent, but it does give a strong sense that much, if not all, of the common law did come to apply to many, if not all, of them.1The Privy Council was reminded of this, with express reference to Blackstone, in November 2003 when it was asked to determine whether the rule inSmith v Selwyn,2a decision of the English Court of Appeal given in 1914, was part of the law of Jamaica.3

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