Anderson Lloyd Trustee Company Limited v Cameron

[2020] NZHC 190

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-128

[2020] NZHC 190

UNDER

The Court’s inherent jurisdiction and

sections 51 and 52 of the Trustee Act 1956

IN THE MATTER OF

an application to appoint a new trustee in substitution for an existing trustee and to vest property in the new trustee

BETWEEN

ANDERSON LLOYD TRUSTEE COMPANY LIMITED

Applicant

AND

ROBERTA ANN JUNE CAMERON

Respondent

Teleconference:	17 February 2020
Counsel:	R Mapson for Applicant
Judgment:	17 February 2020

JUDGMENT OF CHURCHMAN J

Background

[1]    By application dated 25 November 2019, the applicant applied without notice for orders pursuant to r 19.5 of the High Court Rules to permit proceedings to be commenced by Originating Application and r 18.7 for directions as to service and representation.

[2]    On 3 December 2019, orders were made by Gendall J permitting the application to be commenced by originating application; dispensing with service of both the application for leave to permit the application to be filed by way of originating application and of the origination application on the respondent and the beneficiaries

ANDERSON LLOYD TRUSTEE COMPANY LIMITED v CAMERON [2020] NZHC 190 [17 February 2020]

of the Cameron & Co Walton Street Trust (the Trust) and an order that the respondent did not require a litigation guardian as her representative in the proceedings.

Substantive application

[3]    The applicant, Anderson Lloyd Trustee Company Limited (the applicant) is a trustee of the Trust. The respondent is the other trustee.

[4]    The Trust’s principal assets are set out in Schedule A to the application and comprise of a residential property situated at 28 Walton Street, Dunedin, the title to which is contained in Computer Freehold Register OT13B/1468 and certain bank accounts.

[5]    Attached to the affidavit of Sharon Louise Knowles dated 22 November 2019 in support of the application is a certificate from Dr Minh Ha Nguyen, a consultant geriatrician at the Southern District Health Board, which confirms that the respondent suffers from a major neurocognitive disorder and is not capable of understanding her affairs. The disorder is said to be progressive in nature and there is unlikely to be any prospect of the respondent regaining the ability to manage her affairs.

[6]    The applicant accordingly seeks orders that the Court remove the respondent as a trustee of the Trust; appoint Perpetual Guardian (trading as Perpetual Trust Limited) (Perpetual Trust) as the trustee in place of the respondent and vest the property set out in Schedule A of the application jointly and severally in the applicant and Perpetual Trust as the continuing trustees of the Trust.

[7]    The affidavit of Sharon Knowles attaches to it a letter from Perpetual Trust confirming that it consents to be appointed as a trustee of the Trust.

[8]    Also attached to the affidavit are certificates from two beneficiaries of the Trust, Karen Ann O’Connor and Donna Vicki Miller consenting to removal of the respondent as a trustee of the Trust on the grounds that she no longer has the capacity to exercise the function of a trustee.

Analysis

[9]    Having reviewed the material filed in support of the application, I am satisfied that grounds exists for the Court to exercise its inherent jurisdiction to remove the respondent from the role of trustee of the Trust and do so.

[10]   I am also satisfied that Perpetual Trust is an appropriate entity to be appointed as a trustee to the Trust and has consented to being so appointed and, pursuant to s 51 of the Trustee Act 1956, I appoint Perpetual Trust as a trustee of the Trust.

[11]   Having appointed Perpetual Trust as a trustee of the Trust, I make an order pursuant to s 52 of the Trustee Act 1956 vesting the property of the Trust, as set out in Schedule A to the application in this matter, jointly and severally in the applicant and Perpetual Trust as the continuing trustees of the Trust.

Churchman J

Solicitors:
Anderson Lloyd, Dunedin for Applicant