Annan v Pullar

[2019] NZHC 3175

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000648

[2019] NZHC 3175

UNDER

Part 19 of the High Court Rules and section 52 of the Trustee Act 1956

IN THE MATTER

of an Application for vesting order in respect of land

BETWEEN

SHARON LOUISE ANNAN and TRACY

ANN STOKES as trustees of the Irene Pullar Family Trust

Applicants

AND

IRENE ELIZABETH PULLAR

Respondent

Hearing:	Determined on the Papers
Counsel:	R L Powell for Applicants
Judgment:	4 December 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 4 December 2019 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Taiaroa Legal (Naahi Taiaroa), Christchurch

ANNAN and STOKES as trustees of the Irene Pullar Family Trust v PULLAR [2019] NZHC 3175 [4 December 2019]

[1]    The Irene Pullar Family Trust was settled by a Deed of Trust dated 16 February 1999. The respondent, Irene Elizabeth Pullar (Irene), was the settlor of the Trust, and she along with the applicant, Sharon Louise Annan (formerly Sharon Louise Wolland) and Thelma McLintock (now deceased) were trustees. Thelma McLintock passed away on 2 July 2011.

[2]The beneficiaries of the Trust are Irene, Sharon and Sharon’s siblings, Lorna

Marie Kerr, Carolyn Jane Ravenwood and Allan Richard Annan.

[3]    Since  September  2017,  Irene  has  been  living  at  Resthaven   Lifecare, 901 Colombo Street, Christchurch. Irene suffers from dementia. On 19 November 2019, acting pursuant to powers in s 43 of the Trustee Act 1956, Sharon appointed the second applicant, Tracy Ann Stokes, as a trustee in substitution for Irene. This was to satisfy the requirements of the Trust Deed that there will always be two trustees including a trustee who is not a beneficiary.

[4]The applicants are the current trustees of the Trust.

[5]    The applicants hold a residential property in trust, namely 29 Wyon Street, Linwood, Christchurch 8062 described in Computer Freehold Register CB359/140.

[6]    The purpose of this application is to enable the Trust property to be transferred into the names of the applicants as trustees. This will also allow them to pursue a claim in respect of earthquake damage to the property. This claim cannot proceed until the property register has been regularised.

[7]The applicants have applied for orders:

(a)for leave to bring this proceeding by way of originating application;

(b)dispensing with service of the application on Irene and on the beneficiaries;

(c)dispensing with the appointment of a litigation guardian in respect of Irene under r 4.30 of the High Court Rules 2016; and

(d)vesting the Trust property in them as the continuing trustees.

[8]    The evidence satisfies me that Irene has for some years been suffering from dementia. There is satisfactory evidence that prior to her removal as trustee she had no cognitive capacity to perform her duties. She is unable to understand or instruct a lawyer on any legal matters as a result of which she was removed as a trustee.

[9]    Irene is an incapacitated person within the meaning of r 4.29 of the High Court Rules and given the evidence before the court in relation to her mental state it is unnecessary and would be inappropriate to direct service of these proceedings upon her. I dispense with service on Irene.

[10]   I am also satisfied that it is unnecessary to appoint a litigation guardian for Irene under r 4.30 High Court Rules. The applicants are already trustees and I am satisfied that the application is necessary and appropriate and does not affect Irene’s interests as a beneficiary of the Trust. Nothing would be gained from the appointment of a litigation guardian.1

[11]   It is established practice that applications of this type, which are unopposed and do not require particularised pleadings or interlocutory steps, may be commenced by way of originating application. It is appropriate in the circumstances of this case to grant leave to do so and I order accordingly.

[12]   All of the beneficiaries (apart from Irene) support the application. Sharon is an applicant and there are copies of consents to the application signed by the remaining beneficiaries. I therefore dispense with service on the beneficiaries.

[13]   I am satisfied that Irene was lawfully removed as a trustee. It must follow that an order should be made under s 52 of the Trustee Act 1956 vesting the Trust property in the applicants as continuing trustees.

1      Cade v Cade [2016] NZHC 1624.

Orders

[14]I make the following orders:

(a)I grant leave for this proceeding to be brought by way of originating application;

(b)I dispense with service of the application on Irene and the beneficiaries;

(c)I dispense with the appointment of a litigation guardian for Irene; and

(d)the Trust property at 29 Wyon Street, Linwood, Christchurch 8062 being all the land contained in Computer Freehold Register CB359/140 is to vest in the applicants as the trustees of the Irene Pullar Family Trust.

[15]No order in respect of costs was sought and none is made.

O G Paulsen Associate Judge