Andrews v Andrews - [2015] NZHC 759

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2015-404-000804 [2015] NZHC 759

UNDER the Trustee Act 1956 ("the Act")

IN THE MATTER

of an application for orders under sections
51 and 52 of the Act

BETWEEN

JOYCE BEVERLEY ANDREWS AND ANTHONY CHARLES HORROCKS Applicants

AND

ROBERT WILLIAM ROSS ANDREWS Respondent

On the papers

Counsel:

R C Knight for Applicants

Judgment:

20 April 2015

JUDGMENT OF ANDREWS J

This judgment is delivered by me on 20 April 2015 at 11am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

ANDREWS AND HORROCKS v ANDREWS [2015] NZHC 759 [20 April 2015]

Introduction

[1] The applicants have applied for procedural orders:

(a) giving leave to commence this proceeding by way of originating application; and

(b) dispensing with service on the respondent.

[2] In the substantive proceeding, the applicants seek an order under s 51 of the Trustee Act 1956 (the Act) removing the respondent as trustee of the Andrews Family Trust (the Trust) and appointing Horrocks Hampton Trustee Co Ltd as trustee in his stead. The applicants also seek an order under s 52 of the Act vesting a residential property in the continuing trustees of the Trust, and an order vesting in the first-named applicant all of her and the respondent’s joint powers of appointment and removal of trustees, set out in clause 13 of the Trust’s trust deed.

Background

[3] The applicants and the respondent are trustees of the Trust. Evidence has been presented that the respondent (who is 86) is suffering from moderate to severe dementia. He has been assessed by a specialist general physician and geriatrician as lacking testamentary capacity, and as being incapable of making reliable decisions about his health, property, finance, and welfare.

[4] Under the Trust, which was settled by Mr and Mrs Andrews in May 1996, they along with their children and grandchildren are among the discretionary beneficiaries. Mr and Mrs Andrews hold jointly during their lifetimes the power of appointment and removal of trustees. That power may be assigned by Deed and, upon death, the power reverts to their respective executors and administrators.

Procedural orders

[5] In a memorandum of counsel dated 14 April 2015 Mr Knight, on behalf of the applicants, notes that the removal of the respondent as trustee and appointment of

a trustee in his stead could be achieved by his being removed under clause 13 of the Deed, by seeking nomination of a suitable person by the President of the Auckland District Law Society, by way of a Deed of Appointment pursuant to s 43(1) of the Act, or by an order of the Court under s 51. As, in any event, it is necessary to seek a vesting order under s 52 of the Act, it has been submitted that it is more expedient and practical for the applicants to seek orders under both s 51 and s 52 of the Act, contemporaneously.

[6] I am satisfied that it is appropriate for the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andrews v Andrews

Details

AGLC: Andrews v Andrews [2015] NZHC 759
Case: [2015] NZHC 759
Decision Date: 20 April 2015

CaseChat Overview and Summary

In the case of Andrews and Horrocks v Andrews, the applicants sought procedural orders to remove the respondent as a trustee of the Andrews Family Trust and to vest a residential property in the continuing trustees of the Trust, among other things. The applicants also sought substantive orders under sections 51 and 52 of the Trustee Act 1956. The court was required to decide whether the applicants were entitled to the procedural orders and, if so, whether the substantive orders should be made. The court found that the procedural orders were appropriate, and the substantive orders should be made. The court was satisfied that the respondent was unable to exercise his functions as trustee due to his moderate to severe dementia, and it was expedient for the court to appoint a new trustee. The court also found that the applicants' proposed trustee, Horrocks Hampton Trustee Co Ltd, was appropriate, and the residential property should be vested in the continuing trustees of the Trust. Furthermore, the court found that it was necessary to vest the joint powers of appointment and removal of trustees in the first-named applicant during the respondent's lifetime. The court made orders removing the respondent as a trustee and appointing Horrocks Hampton Trustee Co Ltd in his stead, vesting the residential property in the continuing trustees of the Trust, and vesting all the joint powers of appointment and removal of trustees in the first-named applicant during the respondent's lifetime. The costs of and incidental to this proceeding were to be met by the Trust.

Orders