Application of Balding

[2025] NZHC 2220

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2025-488-000093

[2025] NZHC 2220

IN THE MATTER OF

An application under s 52(1)(b) of the Trustee Act 1956

ON THE APPLICATION OF

ELIZABETH JANE BALDING AND WANDA PARK, AS TRUSTEES OF THE

SOUTHPAW TRUST for an order vesting land in the trustees

Applicants

Hearing:	on the papers
Counsel:	J G A Day and L M Whitney-Hollick for applicants
Judgment:	7 August 2025

JUDGMENT OF JOHNSTONE J

(application for vesting order)

This judgment was delivered by me on 7 August 2025 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Law North Limited, Kerikeri

APPLICATION BY ELIZABETH BALDING [2025] NZHC 2220 [7 August 2025].

[1]    Jane Balding and Wanda Park, as the remaining trustees of the Southpaw Trust, seek an order vesting in them, in that capacity, a residential property in Kerikeri. They also seek permission to commence their proceeding by way of originating application, and to have it determined without notice to any other party; in particular, without notice to Gary Balding, a registered owner of the Kerikeri property, or to the Trust’s beneficiaries.

Background

[2]    Ms Balding, and  her  then  husband  Gary  Balding,  settled  the  Trust  on  21 March 2007. They and Ms Park  were  its  original  trustees.  The  Trust’s  primary beneficiaries were the settlors, their child and grandchildren, and any of their remote descendants. The Kerikeri property is the Trust’s only asset. It is held in the registered ownership of Ms Balding, Mr Balding and Ms Park.

[3]    On 14 October 2016, Ms Balding and Mr Balding separated. On 11 June 2020, they executed a separation agreement dividing their relationship property and dealing with their interests in the Trust. Pursuant to that agreement, Ms Balding retained her interests in the Trust and the Kerikeri property. Mr Balding acknowledged he would have no entitlement to a share of the Trust’s capital or income. On the same day, they executed a deed of variation (the Deed), recording that Mr Balding would:

(I)Resign as a Trustee of the Trust;

(II)Relinquish his power of appointment in respect of the Trust (both as the trustees and beneficiaries);

(III)Be removed as a primary beneficiary of the Trust;

(IV)Be removed as settlor of the Trust.

[4]    The separation agreement and the Deed thus confirm the parties’ clear intention that Mr Balding should be removed as a trustee and relinquish any powers or benefits under the Trust.

[5]    However, when executing these documents in June 2020, Ms Balding did not fully understand the desirability of that intention being manifested in the removal of Mr Balding’s name from the registered title of the Kerikeri property. Since late 2022,

when she gained that full understanding, solicitors acting for Ms Balding and for   Mr Balding have been unable to contact him. He has no fixed abode, and appears in recent years to have lived on a yacht sailing around the United States of America.

The applications

[6]    Ms Balding and Ms Park seek the vesting order relying upon s 52(1)(b)(ii) of the Trustee Act 1956. The provisions of that Act apply because Mr Balding was removed as a trustee prior  to  the  commencement  of  the  Trusts Act  2019.1  Section 52(1)(b)(ii)) of the Trustee Act empowers the Court to vest in a trustee any land held jointly with another person who is “out of the jurisdiction of the Court” or “cannot be found”.

[7]    I will address that application after dealing first with the applications for permission to commence by originating application, and for determination without notice.

Should permission be granted to commence by originating application?

[8]    The proceeding is not of a kind required or permitted by rr 19.2 to 19.4 of the High Court Rules 2016 to be brought by originating application. But under r 19.5(1) the Court may,  in the interests of justice, permit  any proceeding not mentioned in   rr 19.2 to 19.4 to be commenced by originating application. The Court’s permission may be sought without notice.2

[9]    The cases confirm that the interests of justice amount to the overarching test.3 The interests of justice are supported by the just, speedy and inexpensive determination of the proceeding.4 But resort to r 19.5 is to be exceptional rather than common place.5 Applications under pt 19 are generally limited to cases where particularised pleadings and interlocutory steps, such as discovery, are not necessary

1      Trusts Act 2019, sch 1 cl 11.

2      Rule 19.5(2).

3      Solar Bright Ltd v Martin [2019] NZHC 300 at [18].

4      Siemer v Attorney-General [2022] NZCA 200.

5      Solar Bright Ltd v Martin, above n 3, at [18].

for  the  proper  determination  of  the  issues.6    Originating applications are not appropriate where factual issues are in dispute.7

[10]   Applications for vesting orders under the Trustees Act 1956 are commonly made by way of originating application.8 In the present case, there is no suggestion of disputed factual issues, or of any need for interlocutory steps. There is no apparent advantage in requiring particularised pleadings.

[11]   I am satisfied that the interests of justice favour the proceeding being commenced by way of originating application.

Should the application be determined without notice?

[12]   Rule 19.10 applies r 7.23 (amongst others) to proceedings commenced by originating application. Rule 7.23(2)(a) provides that an application for determination without notice may be made on grounds which include:

(a)that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant; and

(b)that the interests of justice require the application to be determined without serving notice of the application.

[13]   I am satisfied that considerable  efforts  have  been  made  to  engage  with Mr Balding in respect of the issue of transfer of his registered interest in the Kerikeri property to the remaining trustees, in accordance with the separation agreement and Deed. Requiring the trustees to serve this application on him, when for over two years he has either been uncontactable or unresponsive to contact, would cause undue delay. And prejudice may arise, in that the trustees may be unable to deal with the property in the best interests of the beneficiaries, while seeking to undertake service.

6      Jones v O’Keefe [2019] NZCA 222 at [52].

7 At [52].

8      See for example Re Bleeker [2023] NZHC 3511 at [12]; Re Hamertons Trustee Services Ltd [2018] NZHC 2720 at [10]; Macpherson v Macpherson [2018] NZHC 240; and McKean v McKean [2017] NZHC 2212 at [10].

[14]   I am also satisfied that there is no need for the application to be served on the beneficiaries of the Trust. The orders sought are purely administrative in nature and do not change any of the current beneficiaries’ rights, or any obligation owed to them by the trustees. The interests of justice require the application to be determined without notice.

Should the vesting order be granted?

[15]   I am satisfied that Mr Balding is out of the Court’s jurisdiction, and in any event cannot be found. He was not removed as a registered owner of the Kerikeri property simply as a matter of administrative oversight. It is expedient that the Court should grant the order, as it does no more than give effect to Mr Balding’s intention that he should no longer have any beneficial or legal interest in the property. Doing so will assist the proper execution of the remaining trustees’ duties.

Orders/directions

[16]The applicants may commence this proceeding by originating application.

[17]   The proceeding should be determined without notice, including to Mr Balding and the beneficiaries of the Southpaw Trust.

[18]   The Kerikeri property described at paragraph 1 of the origination application is vested in Jane Elizabeth Balding and Wanda Park.

[19]There is no order as to costs.

Johnstone J