Contents

Chapter 13
Resolving disputes outside of the courts

A role for the Public Trust

13.14During the consultation phase of the project the option of providing for the Public Trust to have a greater role under new legislation was suggested as an alternative to having an ombudsman, tribunal or commission. While this option would be significantly narrower than what was envisaged for an alternative mechanism for dispute resolution, the Public Trust does present an attractive alternative for carrying out relatively straightforward administrative processes and the provision of advice. Currently only the High Court has the power to issue certificates and approvals, which could conceivably be carried out by a different independent body with reduced cost and delay.

13.15Under the Public Trust Act 2001, the Public Trust is established as a statutory corporation that is a Crown entity. It has functions relating to the business of providing estate management and administration services, under that Act, the Trustee Act 1956, and a number of other Acts. Under various statutes the Public Trust is given responsibility for managing public money, administering estates, filing certificates, holding securities, advancing and borrowing money on others’ behalf, executing instruments to discharge a mortgage and overseeing property managers’ property statements.312

13.16Following consultation with the Public Trust, we propose that it should be able to carry out a number of administrative functions under trusts legislation. While it is not suited to resolving disputes between parties, the Public Trust is comfortable with gaining additional functions under a new trusts statute if the functions are of a similar nature to those it has currently. The court’s jurisdiction should remain in place, but where a matter is straightforward and there is no dispute among parties, the Public Trust can provide orders, certificates and advice on specific matters. The proposed roles for the Public Trust include:

13.17Most of these proposals are discussed in more detail in the relevant chapters. Overall the primary argument in favour of conferring additional administrative functions on the Public Trust is that it will be more efficient and cost-effective for the administration of trusts. It addresses the concern raised by many submitters that requiring court processes for administrative matters is time consuming and expensive, and adds unnecessary complication. The main argument in opposition is that the court should retain supervision of trusts. However, the proposed functions above would still be subject to court supervision, but would provide a mechanism for lower level supervision of administrative matters. The Public Trust would be able to refuse to exercise the powers in the list above if it considered that court supervision was appropriate in the context. The Public Trust would be able to charge a fee for carrying out these functions in order to cover their costs.

312For instance, Insolvency Act 2006, ss 273, 283−289, 385 and 387; Protection of Personal and Property Rights Act 1988, ss 37, 39, 46, 91 and sch 2; Property Law Act 2007, ss 109 and 112; Public Works Act 1981, ss 81 and 96−98; Life Insurance Act 1908, s 69; Administration Act 1969, s 19.