Barraclough v Barraclough

[2018] NZHC 1322

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CIV-2018-419-81

[2018] NZHC 1322

UNDER

The Trustee Act 1956

IN THE MATTER

Of an application under Section 52 of the Trustee Act 1956 to vest property in the current trustees of the Loma Payze Trust

BETWEEN

JOHN CHARLES REGINALD

BARRACLOUGH of Hamilton, ANNA CHARLOTTE PAYZE of Hamilton and ETH TRUSTEES 2018 LIMITED all as

trustees of the LOMA PAYZE TRUST Plaintiffs

AND

AND

JOHN CHARLES REGINALD

BARRACLOUGH of Hamilton, ANNA CHARLOTTE PAYZE of Hamilton and ETH TRUSTEES 2018 LIMITED all as

trustees of the LOMA PAYZE TRUST First Defendants

LOMA INA PAYZE of Hamilton Second Defendant

Hearing:	On papers at Hamilton
Appearances:	A J Iles for Plaintiffs
Judgment:	7 June 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 7 June 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BARRACLOUGH & ORS v BARRACLOUGH & ORS [2018] NZHC 1322 [7 June 2018]

[1]    John Barraclough, Anna Payze and ETH Trustees 2018 Limited as the trustees of the Loma Payze Trust (“the Trust”) have applied for an order vesting the Trust property located at 70 Weston Lea Drive, Fitzroy, Hamilton, in the trustees.

[2]    The application has proceeded on notice, but unsurprisingly, for the reasons set out below, no steps have been taken by Loma Payze in opposition and as the first defendants are otherwise the plaintiffs it is appropriate to now determine the application on the papers.

[3]    Having considered the application carefully, and in particular reviewing the affidavit of Mr Barraclough filed in support of the application, it is clear that the application should be granted. The application is necessary because the property at 70 Weston Lea Drive is currently vested in Mr Barraclough and Loma Payze, being the former trustees of the Trust. Although Loma Payze has been certified as being mentally incapable and has been replaced as a trustee by Anna Payze (her daughter) and ETH Trustees 2018 Limited, a vesting order under s 52(1)(a) of the Trustee Act 1956 is necessary to transfer the property into the names of the current trustees to enable them to administer the property.

[4]In the circumstances I make the following orders:

(a)An order vesting all that land comprised and described in CT SA6B/912 being an estate in fee simple of 2.0755 hectares more or less, being Lot 6 on Deposited Plan South Auckland 10393 in John Charles Reginald Barraclough of Hamilton, Accountant, Anna Charlotte Payze of Hamilton, Administration Assistant and ETH Trustees 2018 Limited a duly incorporated company having its registered office at Level 3,

South Bloc, 19 Knox Street, Hamilton; and

(b)No order as to costs.

Powell J