Barnes

[2016] NZHC 327

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2016-442-10 [2016] NZHC 327

UNDER

Part 19 of the High Court Rules and

Sections 52 and 59 of the Trustee Act 1956

IN THE MATTER OF

an application for an order vesting the interests of a trustee under a disability in the Barnes Family Trust

BETWEEN

ROSS BARNES and JOSEPHINE MARGARITA JANE BARNES Applicants

Hearing:	On the papers
Counsel:	H I Palmer
Judgment:	2 March 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is

2 pm on the 2nd day of March 2016

RE BARNES [2016] NZHC 327 [2 March 2016]

[1]      The applicants are two of the three trustees of the Barnes Family Trust (the Trust).   The Trust was established by Deed on 1 May 1996.   The third trustee is Mr Creed, who is a retired solicitor.

[2]      The trustees are the registered proprietors of a property at 49 Chelsea Avenue, Richmond,  Nelson,  being  the  land  described  as  Lot  4  DP  15266,  although Mrs Barnes’ name has been misspelled on the certificate of title.

[3]      Under the Trust Deed Mr and Mrs Barnes have the power to appoint and remove trustees.  They wish to remove Mr Creed as trustee because he has, since about 2013, been permanently incapacitated.   A medical report filed in evidence supports this and his condition has led to a number of other applications similar to the present.1

[4]      Mr Barnes also wishes to retire as trustee due to ill health.  He does not lack capacity.

[5]      On 21 January 2016 Mr and Mrs Barnes executed a Deed of Retirement and Appointment of New Trustees.  Pursuant to the Deed, Mr Creed and Mr Barnes are removed as trustees and Robyn Marie Semaine and Evan David Barnes have been appointed in their stead.

[6]      The substantive part of the present application seeks an order under s 52(2) of the Trustee Act 1956 vesting the Chelsea Avenue property in the new trustees.  Leave to bring the application by originating application under pt 19.5 of the High Court Rules and an order dispensing with service of this application on Mr Creed is also sought.

[7]      This is an application which can properly be dealt with under pt 19 and relates to a routine matter in terms of r 7.46(3)(c).  Mr Creed’s disability is such that that service upon him would be pointless.  I grant leave under pt 19 and order that

service on Mr Creed may be dispense with accordingly.

1      See by way of example only Brown v Creed [2014] NZHC 2824.

[8]      And in terms of the substance of the application Mr Barnes and Mr Creed have been removed and replaced as trustees in accordance with the Trust Deed.  An order under s 52(2) is both appropriate and necessary.  Accordingly I order that the property described as an estate in fee simple in Lot 4 Deposited Plan 15266 be vested in Josephine Margarita Jane Barnes (this being the spelling of her name which

accords with her birth certificate) Robyn Marie Semaine and Evan David Barnes.

Solicitors:           Pitt & Moore, Nelson, for the Applicants

“Rebecca Ellis J”