Arnold v Arnold

[2017] NZHC 2053

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-1961 [2017] NZHC 2053

UNDER	Section 52 of the Trustee Act 1956
AND UNDER	the Court's inherent jurisdiction
BETWEEN	AILEEN GWENNETH ARNOLD, KATIE ANNE BARR AND BYRON ANTHONY ARNOLD AS TRUSTEES OF THE MILLBROOK TRUST Plaintiffs
AND	MALCOLM JOHN ARNOLD Defendant

On the papers
Appearances:	HJ Brandts-Giesen and SJ Kelly for the Plaintiffs
Judgment:	25 August 2017

JUDGMENT OF TOOGOOD

This judgment was delivered by me on 25 August 2017 at 3.30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Arnold v Arnold [2017] NZHC 2053 [25 August 2017]

[1]      Mr Malcolm John Arnold, aged 74, is the settlor and former trustee of a family trust known as the Millbrook Trust, the trustees of which own a property in Speargrass Flat Road, Lake Hayes near Queenstown.

[2]      An  affidavit  from  Dr JP  Mottershead  establishes  that,  as  a  result  of  an epileptic incident suffered by Mr Arnold on 8 August 2017, Mr Arnold has become mentally incapacitated to such an extent that he lacks the capacity to manage his own affairs  both  in  terms  of  his  property  and  personal  care  and  welfare.     In Dr Mottershead’s  opinion,  Mr Arnold’s  mental  capacity  is  unlikely  to  improve significantly.

[3]      As a result of Mr Arnold’s unfortunate disability, he has been removed as a trustee of the family trust but he lacks the capacity to sign documents vesting the Lake Hayes property in the current trustees.

[4]      Accordingly I make the following procedural orders:

(a)       service of this proceeding on Malcolm John Arnold shall be dispensed with;

(b)      a litigation guardian for Mr Arnold need not be appointed;

(c)       the proceeding brought by the applicants shall be determined on the papers; and

(d)      evidence in the proceeding shall be by way of affidavit.

[5]      I am satisfied that it is appropriate to make the vesting order sought.

[6]      I  order  that,  that  pursuant  to  s  52(1)(b)(i)  of  the  Trustee Act 1956,  the property legally described as Lot 4 Deposited Plan 23684 comprised in computer freehold register OT15D/361, shall vest in:

(a)       Aileen Gwenneth Arnold; and

(b)      Katie Anne Barr; and

(c)       Byron Anthony Arnold.

.......................................

Toogood J