Browsing by Author "Stevens, Nicholas"

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Open Access
Down And Out In New Zealand: Opening The Discretionary Trust For A Bankrupt’s Creditors
(Te Herenga Waka—Victoria University of Wellington, 2022) Stevens, Nicholas
The discretionary trust in New Zealand is a prolific and effective shield against the effects of personal bankruptcy. This paper discusses the interaction between New Zealand discretionary trusts and insolvency law. It analyses the obvious policy problem, that trusts allow settlors to avoid the statutory bankruptcy scheme at will. Fundamentally, the paper seeks to better protect creditors by bringing trust powers into the insolvency property pool. It begins by addressing the illusory trust debate in the literature, concluding that the illusory trust doctrine is relevant, but distinct. The paper then presents a form-over-substance, or functional, approach to identifying trust powers by looking through otherwise opaque drafting practices. To determine which powers are “property”, the paper looks to what bundle of a settlor’s rights would best vindicate the social and statutory purposes of insolvency law. Ultimately, it argues that Bennett and Barkley’s unlimited self-benefit criteria would best support these purposes. The paper’s analysis uses a property law framework to formalise the reasoning in the “trust busting” cases of Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank and Trust Co (Cayman) Ltd [2011] UKPC 17, [2011] 4 All ER 704 and Clayton v Clayton [2016] NZSC 29, [2016] 1 NZLR 551. The paper recognises there are trade-offs due to New Zealand’s weak sham regime. However, it concludes the new pathway is a promising model to open discretionary trusts for creditors, to advance Parliament’s intention, and to support a principled approach to trust law.
Open Access
A Single Set of Rules for Henry VIII Powers Informed by Their Critiques
(Te Herenga Waka—Victoria University of Wellington, 2023) Stevens, Nicholas; McLay, Geoff
The Henry VIII Power has long been challenged as an objectionable delegation of power to the Executive. Given they are so objectionable, it is surprising that in New Zealand there is no bespoke set of rules to ensure their use is scrutinised and controlled. This paper provides these rules. It sets out a process through which instruments promulgated under a Henry VIII Power should pass. The rules aim to be efficient, transparent and mitigate the risk of misuse. The Paper provides a background on Henry VIII Powers in New Zealand and analyses their use case. To inform the rules, the paper taxonomizes, analyses, and challenges the various critiques of Henry VIII Powers. By challenging the critiques, the paper identified how critics under-value pre-legislative scrutiny and the power of the Court. Also revealed was how Burton and Drewery’s policy-administration taxonomy of legislation provided a better way to analyse the appropriate scope of a Henry VIII Power. Parliament’s perceived monopoly on scrutiny and the democratic nature of Henry VIII Powers were also elucidated through further analysis. The critiques not only inform debate, but also provide a basis for the draft rules. The paper suggests that instruments promulgated through Henry VIII Powers should be limited in scope to administrative matters, be approved by Parliament following reasonable scrutiny, and be prevented from altering particular statutes. The paper concludes the draft rules are a promising tool to better regulate and inspire further study of Henry VIII Powers.