Can a trust be a person? The Court of Appeal says yes

The District Court previously held that HWSA charges could only be brought against trustees in their individual capacity. On appeal to the High Court, Harvey J found that charges could be brought against the trustees of the trust collectively, but not against the trust itself.

These previous decisions and the facts underlying them are set out in our previous articles here:

1. SBS v WorkSafe [2025] NZHC 979 – Consultants at Risk
2. Is a Trust a person for the purposes of The Health and Safety at Work Act?

In a majority decision (Cooke and Palmer JJ), the Court of Appeal has now gone one step further determining that either a trust or trustees acting collectively can be a “person” or a “body of persons” under the HSWA.

The majority acknowledged that a trust is not a legal person, and as such any finding that it is capable of being criminally liable would be inconsistent with orthodox trust law. However, while accepting that principles of trust law were a strong starting point, it emphasised that its task was to identify the meaning of who is a Person under the HSWA from its text in light of its purpose and context.

Having established this, the Court of Appeal went on to consider the definition of Person in the HSWA,² noting that it includes a body of persons whether corporate or unincorporate. It held:

• Questions of legal form are not determinative. A trust can be treated as a PCBU if it is, in fact and as a matter of substance, a body of persons conducting the business or undertaking responsible for workplace safety.
• Trusts are frequently used in New Zealand not only as property-owning structures but also as vehicles to own and operate businesses. For example, when a decision is made to transfer a farm to a trust, or establish a trust to own and operate a farm, the trust undertakes the business as a matter of substance. On the face of the HSWA provisions, a trust can accordingly manage and control the workplace for the purposes of s 37.
• The correct defendant will be a trust where (again), as a matter of fact and in substance, the relevant business is being managed through the collective decisions of the trustees, rather than by individuals. The mere existence of a trust may not conclusively establish this. However, its existence will likely involve a presumption that collective decision-making by the trustees is involved. Ultimately, the question of who is making, or has the responsibility to make, the relevant decisions, is a matter of fact.
• It would be contrary to Parliament’s intent to conclude that the maximum penalty available under the HSWA cannot be imposed when the collective decision-making body is a trust rather than a company, partnership or similar body.

On the question of whether it is the trust or the trustees acting collectively that are the PCBU, the Court held that the label used to identify the body of persons was simply a matter of semantics. It found that the trustees could be named in their capacity as the trustees of the trust acting collectively, or the trust itself could be named. The important point was that if the trustees were named to identify the trust, they were not defendants in an individual capacity.

This does not mean that there will not be circumstances where a trustee can be found individually liable. The Court confirmed that the definition of “officer” in HSWA³ refers to a position “comparable” to that of a director. Where a trust undertakes a business, a trustee can meet the definition of an officer and be liable as such. However, the Court’s focus in this case was on whether the trust or the trustees acting collectively could be liable.

Turning to issues raised by the appellants in relation to the prohibition on indemnification for fines⁴ and enforcement, the majority held:

Where the trust or trustees collectively are the defendant, the penalty is imposed on the collective entity and the assets of the trust would be available to address any fine. The law of enforcement would apply in the normal way — the obligations of the trust would be enforceable by action taken against the individual trustees as the representatives of the trust.

In this particular case, the Court found that a request from the trust’s representative to a farming consultant employed by the trust (copied to one of the other trustees) asking for the health and safety policies, and stating that these should be “reviewed on a regular basis” and that there should be “quarterly [health and safety] meeting minutes” was consistent with the existence of collective decision-making and that health and safety issues were being addressed collectively by the trustees.

Whata J issued a detailed dissenting judgment rejecting the move away from the established principles of trust law and preferring Harvey J’s finding that a trust cannot be a person. This may encourage the unsuccessful appellants to seek leave for the Supreme Court to have the final say on the issue.

In the meantime, we are left to ponder the practical considerations of what will constitute evidence of collective decision-making in various fact specific scenarios. At the very least, trustees of trusts that own and operate businesses should be mindful that they are subject to the duties imposed on collective decision-making bodies under the HSWA and that as such trust assets could be exposed to the maximum penalties available under the Act.

1. RH & JY Trust & Ors v WorkSafe CA85/2024 [2026] NZCA 12.
2. Section 16 HSWA.
3. Section 18 HSWA.
4. Section 29 HSWA.

This publication is intended as a general overview and discussion of the content dealt with. It should not be used in any specific situation, in which case you should seek specific legal advice.