Chapter 3 - Jurisdiction of the District Courts

Extending the jurisdiction of District Courts

Whether District Courts should have jurisdiction under legislation replacing the Trustee Act and, if only partially, in what areas, are significant issues for this review.

Should District Courts have jurisdiction under new trust legislation?

Arguments that can be made in favour of expanding the District Courts’ jurisdiction under new trusts legislation centre on improving access to dispute resolution options. The equitable jurisdiction of District Courts in respect of trusts is ineffective unless they are able to exercise statutory powers over trusts. District Courts are not currently an effective forum for trust cases because they do not have jurisdiction to appoint new trustees, remove or replace trustees or deal with applications for variation or resettlement. They also cannot review the acts of trustees under section 68 where they are exercising a power under the Act. (As already noted, the upper limit to the District Courts’ jurisdiction is also a practical barrier to commencing most trust cases in these courts – but that issue is well beyond the scope of this project.)

Since the Trustee Act came into force the jurisdiction of District Courts has expanded, in equity, as well as in other areas. As the monetary jurisdiction of the District Courts has increased, amendments have also broadened the scope of their jurisdiction under section 34. Subsection (2A) was, for example, inserted in 1996 giving District Courts the power to make orders under section 49 of the Administration Act 1969. As already noted, the current section 34 replaced a list of specific matters that previously defined the courts’ equitable jurisdiction in 1992.

Given the general expansion of the courts’ equitable jurisdiction during the years since the Trustee Act was enacted, it might therefore be argued that it is something of an anomaly that District Courts cannot exercise powers under the Trustee Act within their monetary limits. In other areas of law, for example the Property Law Act 2007, District Courts now have concurrent jurisdiction with the High Court under statute. However, other Acts, for example the Companies Act 1993, continue to reserve jurisdiction to the High Court.

It might also be argued that District Courts could provide a less costly and generally more accessible option for beneficiaries seeking to hold trustees to account in lower value disputes.96 Similarly, in some situations where trustees need to apply to the High Court for directions or orders, the cost of proceedings might be reduced if applications could be made to the District Courts. For example, even a comparatively straightforward application to remove a trustee on grounds of incompetence or criminal fraud requires a High Court application. In many situations an application to appoint a new trustee is a relatively straightforward matter.

Litigating in the High Court is expensive. The fee structure for the High Court’s civil jurisdiction is premised on it primarily hearing high value cases or those that raise complex issues of law. The filing fee for an application is presently $1,329.20. There is also a concession rate proceeding fee of $483.40, which is available for some applications under the Trustee Act. However, the Commission has been advised by practitioners that practices vary between different registries as to when this lower rate is applied. Hearing fees for the High Court are $1,570.90 for each half day of court time.97 In contrast, an application fee in a District Court is $169.20 and hearing fees are set at $906.30 for each half day.98

The cost of legal representation probably differs less between the two courts. It has been suggested to the Commission by practitioners that the cost of representation will be similar regardless of whether cases are heard in the High or District Court. This is mainly because proceedings under the Trustee Act can often be undertaken in the High Court using the truncated, less costly originating application process. This process is not available in the District Courts so overall the cost of representation may remain similar, even where practitioners’ charging rates are lower in the District Court.

While the differences in the cost of representation are less significant, the overall cost to litigants is higher in the High Court. Some commentators argue that the cost of High Court action may be reasonable where there are substantial assets and sufficient funds in the trust to meet them. However, many trusts in New Zealand have only modest assets (often the family home) and it seems anomalous that trustees can bring other claims (like one to enforce a contract) in a District Court for up to $200,000, but an application to remove a trustee can only be made only in the High Court.99

The question of whether applications could be more quickly resolved by the District Courts is much more difficult to assess.

Researchers at the Otago University Law Faculty recently conducted a preliminary investigation on the speed of resolution of civil cases in New Zealand. The study found that there was a dearth of New Zealand research in this area. Using data that measured the time it took for a subset of civil cases to progress through the system for the District and High Court, the study found that while a greater percentage of cases are resolved before being allocated a hearing in the District Court, those cases take on average 55 days longer to resolve than the same group of cases in the High Court. Where cases proceed to the point where a hearing is allocated cases take on average marginally less time (19 days) in the District Court than the High Court. Where there is more difference between the two is the percentage of High Court cases (16 per cent) that come within this bracket compared to the District Courts (only one per cent).100 The reasons for this difference are not clear. It may be due to differences in the types of civil cases, the value of claims or the issues being litigated in each court.

Some trust practitioners have told the Commission that the High Court’s civil procedures and also its case management processes are much better suited to resolving trust litigation than those currently in use in the District Courts. In particular, the availability of the truncated originating application process, effective case management processes, and the use of Associate Judges increase the court’s efficiency and can reduce delay and cost.

Which powers should District Courts have?

If the jurisdiction of District Courts was extended under new trust legislation, then a further issue to consider is whether District Courts should simply be given concurrent jurisdiction with the High Court up to the monetary limits specified in the District Courts Act. Concurrent jurisdiction would allow applicants to continue to file in the High Court where they considered the circumstances made this more appropriate.

Giving the District Courts jurisdiction in all matters arising under the Act that fall within specified monetary limits is the more straightforward approach to reform.

However, an alternative option to consider would be to give the District Courts jurisdiction under some specific sections (such as the appointment and removal of trustees) but not others (such as those enabling variations to a trust).

If jurisdiction is limited to specific sections then the specific powers the courts should have would need to be identified. As noted above, the Select Committee report on the Trustee Amendment Bill 2007 only proposed giving District Courts jurisdiction under section 73. However, that was probably because jurisdiction under that specific section was the issue being dealt with in the Bill. The Committee was not considering the broader question of whether the District Courts should also have jurisdiction under the other sections of the Trustee Act.

The three specific areas where it has been suggested to the Commission that a lower level alternative to the High Court is most needed are:101

(a)appointment and removal of trustees;

(b)decisions about whether or not trustees should release specific information to beneficiaries or not; and

(c)application for directions jurisdiction (currently under section 66 of the Act).

A disadvantage of only giving the courts certain powers would be that aspects of a trust case that come before a District Court may still raise issues that fall beyond the court’s jurisdiction.

Should the Family Court have jurisdiction under new trusts legislation?

Another alternative that has been discussed by some commentators is to give the Family Court some jurisdiction (again concurrently with the High Court) under trust legislation.102 The Family Court might only have jurisdiction under some specific provisions.

The Family Court already has concurrent jurisdiction with the High Court under the Family Protection Act 1955 and it might therefore be appropriate for it, rather than the District Courts, to have jurisdiction in respect of family trusts. The Family Court also already sometimes considers aspects of trust law that arise in cases within its jurisdiction under the Property (Relationships) Act 1976.

However, a number of issues arise when considering the Family Court. Not all trusts are family trusts. Many trusts have a commercial component and significant numbers operate, as discussed in Part 3 of this paper, as trading trusts. The Family Court could not be considered an appropriate forum for disputes in respect of any of these types of trusts.

In addition, the Family Court does not have the substantive equitable jurisdiction of the District Courts. Section 11(1) of the Family Courts Act 1980 confers jurisdiction on the Family Court. Section 16 of that Act then applies the District Courts Act, with any necessary modifications, to Family Courts and Family Court judges. A line of High Court cases has confirmed that these provisions do not confer the District Court’s substantive equitable jurisdiction under section 34 on the Family Court.103 In the most recent decision the High Court stated that “further words are required to confer on the Family Court the civil jurisdiction of the District Court. Those further words are absent”.104 The Family Court has, under section 16 of the Family Court Act, the ancillary jurisdiction of a District Court under section 41 of the District Courts Act, so is able to give equitable relief where a matter is within its jurisdiction, but does not have jurisdiction to hear a cause of action founded in equity.105

Unless it was first given a substantive equitable jurisdiction, the Family Court could not deal with the full range of trust cases. It cannot therefore be considered as an alternative forum, even for family trust cases, in the way the District Courts might. However, the Family Court could be given a limited jurisdiction to exercise powers under the Trustee Act where that was considered necessary to dispose of proceedings that were otherwise properly before it under other legislation (such as the Family Proceedings Act, Property (Relationships) Act, and Family Protection Act). The Commission would welcome feedback on whether this might be desirable, given the number and nature of trust issues that seem to have arisen in relationship property cases before the Family Court.106

Finally, it should be noted that these issues in respect of the Family Court’s jurisdiction are currently being considered as part of the broader Family Court Review being undertaken by the Ministry of Justice. The terms of reference require that review to specifically consider “the statutes best administered by the Family Court and the boundaries between the Family Court and the civil jurisdiction of the High or District Courts”. Reviewing the Family Court: A Public Consultation Paper was issued by the Ministry in September 2011 and submissions will close on 29 February 2012.

Should the High Court retain exclusive jurisdiction?

The main argument for the High Court retaining exclusive jurisdiction is that trust law is a technical and specialist area involving issues of both legal and factual complexity. Considerable expertise at both the judicial level and representation level is required and this will more readily occur if jurisdiction is exclusively exercised by the High Court. In 2004 the Law Commission recommended that some areas of civil work, including trusts and administration, should continue to be heard exclusively or predominantly by the High Court because such cases can be complex.107

The Scottish Law Commission has also recently taken this approach. It has said that in the interests of simplification there should be a single court to which all applications relating to trusts are made.108 Some areas of trust jurisdiction, for example those around variation of the terms of the trust, confer significant discretion on the court. The Scottish Law Commission’s view is that a consistent and principled approach across cases can best be achieved by allocating all cases to a single court.109 This same argument applies in New Zealand.

Trust cases involving the exercise of powers under the Act make up only a small portion of civil cases currently dealt with by the High Court. They would make up an even smaller portion of the civil workload of District Courts. It might be argued that it is more efficient to have all these cases determined by judges who have a greater degree of familiarity with a particular area of law. If trust cases are concentrated in the one court, the level of expertise at managing and resolving such cases improves, which in turn can reduce court time and costs. Judges with greater familiarity with the subject matter comprehend the evidence and issues more readily. This ultimately leads to better decision-making because such judges are less likely to err in their decisions. Arguments of this kind are currently being made by some for greater specialism within the High Court.110

As already noted, some practitioners have suggested that the better case management processes that are evident in the High Court, together with the use of Associate Judges, allow that court to effectively manage and resolve most trust cases. The High Court is better placed to efficiently process and determine the full range of trust related applications, including relatively simple applications, in a reasonably efficient and timely manner.


There are clear advantages in having greater expertise develop in complex areas of law. However, other factors, such as cost and accessibility for litigants, also need to be considered. It is also very difficult to determine whether decision-making by the District Courts would be any better or worse than the High Court.

At this stage the Commission’s perception is that there are mixed views within the judiciary and the legal profession on extending the District Courts’ jurisdiction. There are likely to be many who would not support District Courts having greater jurisdiction over trust issues and many who would likely welcome it.

Chris Kelly “Supervision of Trustees: Enforcement or Problem Solving” (LLM Thesis, Victoria University of Wellington, 2009) at 107. 

High Court Fees Regulations 2001, sch. 

District Courts Fees Regulations 2009, sch. 

Kelly, above n 96, at 108. 

Rachel Laing, Saskia Righarts and Mark Henaghan A Preliminary Study on Civil Case Progression Times in New Zealand (University of Otago Legal Issues Centre, Faculty of Law, 15 April 2011).

Submission of Greg Kelly Law Limited on The Duties, Office and Powers of a Trustee: Review of the Law of Trusts – Fourth Issues Paper (dated 12 October 2011). 

For example see the discussion in Kelly, above n 96, at 108. 

Singh v Kaur [2000] 1 NZLR 755 (HC); Perry v West HC Auckland M1331-SD00, 8 September 2000; F v W HC Wellington CIV-2009-485-000531, 16 July 2009; Yeoman v Public Trust Ltd [2011] NZFLR 753 (HC).

Yeoman v Public Trust Ltd [2011] NZFLR 753 (HC) at [28].

Ibid, at [27] and [29].

The trust issues that have arisen within the Family Court’s jurisdiction are discussed in an earlier paper; Law Commission Some Issues with the Use of Trusts: Review of the Law of Trusts Second Issues Paper (NZLC, IP20, 2010) at [3.22]–[3.41].

Law Commission Delivering Justice for All (NZLC R85, 2004) at 262.

Scottish Law Commission Discussion Paper on Supplementary and Miscellaneous Issues relating to Trust Law (SLC DP148, 2011) at 37.


Dr Tony Molloy QC has, for example, argued strongly for specialism cautioning that it is not reasonable to expect judges to be able to master all of the law. See Tony Molloy QC “Trust Busting” (paper presented to a forensic accounting conference in Auckland, May 2011) at 5.