Bamford v Ives - [2020] NZHC 994

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2020-442-15

[2020] NZHC 994

UNDER THE Trustee Act 1956

IN THE MATTER

of an originating application without notice for removal of trustee and vesting order

BETWEEN

ANTHONY JOHN DEAN BAMFORD

First Applicant

LINDA LORRAINE BAMFORD

Second Applicant

AND

YVONNE ELLEN IVES

Respondent

Hearing: On the papers

Appearances:

L J Miller for the Applicants

Judgment:

14 May 2020

JUDGMENT OF COOKE J

[1]By application dated 20 March 2020 the applicant seeks orders that:

(a)These proceedings be permitted to be commenced by originating application.

(b)Service of the proceedings on the respondent or any other person be dispensed with.

(c)The respondent be removed as a trustee of the Ives Family Trust.

BAMFORD v IVES [2020] NZHC 994 [14 May 2020]

(d)Title in a particular property owned by the Trust be vested in the continuing trustees under s 52 of the Trustee Act 1956.

[2] The application is supported by an affidavit from the first applicant, Mr Anthony Bamford and a memorandum of counsel.

[3] The underlying issue is that the respondent suffers from dementia and is said to lack capacity to continue to act as trustee. An application is accordingly made to have her removed as a trustee, and that solely the applicants as remaining trustees continue to administer the Trust. Orders under s 52 are then required to amend the registered title for Trust property. The first applicant is a solicitor of Nelson and acts as a professional trustee, and the second applicant is a legal executive who also acts in that capacity.

[4] The order set out in paragraph [1](a) above is routinely granted in cases of this kind and is duly made here.

Dispensing with service

[5] I am prepared to make an order dispensing of service or the giving of notice on any other person, but not without some reservation, and I have decided that certain further steps are necessary.

[6] My reservation arises from the fact that the memorandum of counsel refers to their being a history of disagreement within the family in relation to the administration of the Trust. Counsel advises, however, that all of the children of the respondent agree that the applicants are the appropriate trustees, and should continue as the only trustees. Counsel also advises that appointing one or more family member would potentially exacerbate existing family tensions in the context of the primary need to attend to the respondent’s care and wellbeing.

[7] In those circumstances it would have been appropriate for the affidavit evidence to have addressed those questions, and provided some evidence of the relevant agreement of the affected beneficiaries of the Trust, for example by way of signed consent forms. I am prepared to give such directions because of the information

conveyed in the memorandum of counsel to the Court, and given the proposed remaining trustees are independent professional trustees who also have professional and ethical obligations to the Court. In those circumstances…

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 Bamford v Ives

Details

AGLC: Bamford v Ives [2020] NZHC 994
Case: [2020] NZHC 994
Decision Date: 14 May 2020

CaseChat Overview and Summary

The High Court of New Zealand dealt with an application by Anthony John Dean Bamford and Linda Lorraine Bamford to remove Yvonne Ellen Ives from her position as a trustee of the Ives Family Trust and to vest title in certain property owned by the trust in the continuing trustees. The applicants sought orders for the removal of the respondent trustee due to her alleged incapacity resulting from dementia. They also requested orders under section 52 of the Trustee Act 1956 to amend the registered title of the trust property. The court considered whether it had the inherent jurisdiction to remove a trustee without appointing a replacement and whether the evidence supported the removal of the respondent trustee.

The court found that it had the inherent jurisdiction to remove a trustee who was no longer capable of acting, without appointing a replacement, as per previous cases such as Clarke v Karaitiana, Wallace v Naknok, and Godfrey v McCormick. The court also accepted that the respondent trustee was not capable of continuing to act due to her dementia, despite limited evidence. The court was satisfied with the applicants' capacity to act as the only trustees based on the information provided in the memorandum of counsel and the evidence presented. Therefore, the court granted the orders to remove the respondent trustee and vest title in the continuing trustees.

The court, however, decided to stay the effect of the substantive orders for a short period to allow the children of the respondent trustee to be notified of the court's judgment and to apply to vary or discharge the orders if necessary. The court made further orders to ensure the children of the respondent were informed of the judgment and had the opportunity to apply to the court. The court also stayed the effect of the substantive orders until the children had the opportunity to apply to vary or discharge them.

Orders