Baker v Baker - [2019] NZHC 2426

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-235

[2019] NZHC 2426

UNDER Part 19 of the High Court Rules 2016 and the Trustee Act 1956

IN THE MATTER

of an application for a vesting order in respect of land

BETWEEN

BRIAN HERBERT BAKER and MSCA TRUSTEES (2011) LIMITED

Applicants

AND

CHRISTINE CONNIE BAKER

Respondent

Hearing: On the papers

Counsel:

RL Buttar for applicants

Judgment:

25 September 2019

JUDGMENT OF FITZGERALD J

[As to interlocutory application for directions and originating application seeking vesting orders]

This judgment was delivered by me on 25 September 2019 at 2:30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Edmonds Judd, Te Awamutu

Baker v Baker [2019] NZHC 2426 [25 September 2019]

Introduction

[1] The applicants are two of the three trustees of a family trust (the Trust) settled by the first-named applicant (Mr Baker) and his wife Mrs Baker (the respondent and third trustee). Sadly, as of at least 2016, Mrs Barker has suffered with mixed dementia (Alzheimer’s and frontal dementia). Since that time, her condition has deteriorated and in October 2018, her enduring power of attorney (EPOA) was invoked. A more recent medical certificate records her worsening condition.

[2] Given Mrs Baker’s current condition, the two remaining trustees, the applicants, are understandably of the view she is no longer able to carry out her role as trustee. They also wish to sell some bare land held by the Trust, which is currently registered in the applicants’ and Mrs Baker’s joint names. They apply for a vesting order vesting title to the land in their names only.

[3] As matters presently stand, Mrs Baker remains a trustee of the Trust. The applicants accordingly also seek an order formally removing Mrs Baker as trustee.

Factual background – more detail

[4] The Trust was originally settled in September 1997. Its settlors were Mr and Mrs Baker. They, with one other person, were also the original trustees. The second- named applicant, MSCA Trustees (2011) Ltd (MSCA Trustees) later replaced the third trustee. There are a (potentially large) number of discretionary beneficiaries under the Trust, which include Mr and Mrs Baker themselves, and their three children. Each of the three children has provided consent to the orders sought (although not the order removing Mrs Baker as a trustee; as the need for this order was raised by the Court after the proceedings were commenced and the written consent had been given).

[5] As noted, Mrs Baker was first diagnosed with mixed dementia in May 2016. An EPOA in relation to her personal welfare was invoked in October 2018. Dr Jo Ann Francisco, a General Practitioner, has provided a report dated 20 May 2019 on Mrs Baker’s condition at that time, which is described as having “progressed significantly”. She is described as having “worsening memory and behaviour”.

[6] Part of the Trust assets is bare land located in Ōtorohanga, being land contained in 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.

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Details

Case: [2019] NZHC 2426
Decision Date: 25 September 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Baker v Baker involved an application for a vesting order in respect of land. The applicants, Brian Herbert Baker and MSCA Trustees (2011) Limited, sought the removal of Christine Connie Baker, the respondent and third trustee, from the trust due to her medical condition and the inability to carry out her role as trustee. The applicants also sought a vesting order to vest the title of the land in their names only. The legal issues the court had to decide included whether the applicants had the right to remove Mrs Baker as a trustee and whether the court should grant a vesting order vesting title to the land in their names only.

The court found that Mrs Baker's current medical condition meant she was unable to fulfil her role as trustee of the trust. The court exercised its inherent jurisdiction to remove Mrs Baker as a trustee of the trust and made a vesting order pursuant to s 52 of the Trustee Act 1956. The court granted leave to commence the proceedings by way of an originating application under Part 19 of the High Court Rules, dispensed with service on Mrs Baker, the discretionary beneficiaries of the Trust, and any other third party, removed the respondent as a trustee of the Trust, and vested title to the Land in the names of the applicants.

The final orders made by the court were to grant leave to commence these proceedings by way of an originating application under Part 19 of the High Court Rules, dispense with service on Mrs Baker, the discretionary beneficiaries of the Trust and any other third party, remove the respondent as a trustee of the Trust, and vest title to the Land in the names of the applicants, Brian Herbert Baker and MSCA Trustees (2011) Ltd. The court made no order as to costs.

Orders