Anderson v Anderson

[2017] NZHC 73

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2017-419-000006 [2017] NZHC 73

UNDER

Part 19 of the High Court Rules and the

Trustee Act 1956

IN THE MATTER OF

an application for a vesting order in respect of land

BETWEEN

CHRISTINA JOYCE ANDERSON AND OSBORNES PROFESSIONAL TRUSTEES LIMITED

Applicants

AND

HECTOR CAMERON ANDERSON Respondent

Hearing:	[On the Papers]
Counsel:	C W Grenfell for the Applicants
Judgment:	3 February 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 3 February 2017 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Edmonds Judd, Te Awamutu

ANDERSON v ANDERSON [2017] NZHC 73 [3 February 2017]

[1]      The applicants, Mrs Anderson and Osbornes Professional Trustees Ltd, are trustees of the Anderlea Trust (Trust).  Mr Anderson, the respondent, was an original trustee  of  the  Trust.    He  was  removed  by  way  of  deed  of  incapacity  dated

20 December 2016 due to dementia.

[2]      The  applicants  seek  leave  to  bring  an  application  under  Part 19  of  the High Court Rules and an order dispensing with service.  The substantive application seeks an order vesting the property owned by the Trust in the applicants as the remaining trustees.

[3]      The property owned by the trust is located in Whangaparaoa.  There is some urgency in  resolving the application  as  the applicants  have resolved  to  sell  the property and have accepted an offer made prior to Christmas.   Due to the requirements of LINZ, the sale and purchase of the property cannot be completed unless an order is made vesting the property in the applicants as trustees.

[4]      The beneficiaries of the Trust are Mrs Anderson, Mr Anderson, their four children, and children or remoter issue of the final beneficiaries.  The beneficiaries currently comprise four children, 13 grandchildren and eight great grandchildren. At the  time  that  the  Trust  was  settled,  a  memorandum  of  wishes  executed  by Mr and Mrs Anderson expressed their wish that the Trust be administered primarily for their benefit.  The sale of the property is necessary to provide for Mr Anderson’s ongoing care and for the provision of both Mr and Mrs Anderson in their retirement.

[5]      The application is administrative in nature.  There is no need for pleadings, interlocutory steps or evidence.  Leave to commence the proceeding under Part 19 of the High Court Rules is therefore appropriate in the circumstances.  Leave is granted accordingly.

[6]      An order dispensing with service on the respondent is also appropriate in this case.  The affidavit of Mrs Anderson attaches a letter from the respondent’s doctor. That letter confirms that the respondent has severe cognitive impairment and is unable to make any sensible informed decision on any financial or care matters.

Service of the application in those circumstances serves no real purpose.  I make an order dispensing with service on the respondent.

[7]      Service on all the children, grandchildren, and great grandchildren in their capacity  as  beneficiaries  of  the  Trust  is  also  unnecessary  in  my  view.    The application simply regularises the existing position so as to meet LINZ requirements. Although the sale of the property is relevant background, it does not form part of the application before the Court.  In the circumstances, it would be unduly burdensome to serve all current beneficiaries with the application.   Service of the originating application on existing beneficiaries is accordingly dispensed with.

[8]      The remaining issue is the substantive application requiring vesting of the property in the remaining trustees.  Such an order is required to reflect the position as it stands now, and to meet the filing requirements of LINZ to allow the property to be sold.  The grounds for the order having been established, I make an order vesting the property at 37 Arkles Strand, Arkles Bay, Whangaparaoa (Certificate of Title NA26A/388,  Lot  169  Deposited  Plan  21728)  in  Christina  Joyce Anderson  and Osbornes Professional Trustees Ltd.  The property is held by them in their capacity

as trustees of the Anderlea Trust.

Edwards J