Barratt-Boyes v Huntley

[2014] NZHC 1718

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-1716 [2014] NZHC 1718

UNDER

the Trustee Act 1956

IN THE MATTER

of an application under s 52 for a vesting order of land

BETWEEN

JOHN NORMAN BARRATT-BOYES and BEVERLEY KAYE DEVERALL as trustees of the Kenneth Huntley Family Trust and as trustees of the Shirley Huntley Family Trust

Plaintiffs

AND

KENNETH HUNTLEY as a former trustee of the Kenneth Huntley Family Trust

First Defendant

SHIRLEY DONALDSON HUNTLEY as a former trustee of the Shirley Huntley Family Trust

Second Defendant

On thepapers:
Counsel:	JN Barratt-Boyes for plaintiffs
Judgment:	23 July 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 23 July 2014 at 11am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Barratt-Boyes Law Practice, Auckland

Barratt-Boyes v Huntley [2014] NZHC 1718 [23 July 2014]

[1]      The  plaintiffs  are  trustees  of  the  Kenneth  Huntley Family Trust  and  the

Shirley Huntley Family Trust. The trusts were established on 26 March 1992.

[2]      Kenneth Huntley and Shirley Donaldson Huntley were formerly the trustees respectively of each of the trusts.

[3]      There is evidence that both Kenneth Huntley and Shirley Donaldson Huntley suffer from dementia and are unable to manage their affairs.  That evidence is in the form of a Certificate of Mental Incapacity provided by mental practitioners.

[4]      Both  Kenneth  Huntley and  Shirley Donaldson  Huntley  were removed  as trustees through powers exercised by the remaining original trust, Mr JN Barratt- Boyes and pursuant to s 43(1) of the Trustee Act 1956.  The appointments relied on enduring powers of attorney.

[5]      Both  trusts  are  owners  of  a  property  described  as  77c  Benson  Road, Remuera, Auckland comprised in certificate of title NA54C/272.   The trusts are recorded as tenants-in-common in equal shares.

[6]      The present trustees now seek a vesting order so that the property may be transferred into the names of the current trustees of both trusts alone. The purpose of the vesting order is to regularise the position so that all present trustees are shown on the title.  Section 52 of the Trustee Act 1956 justifies the making of a vesting order in these circumstances.

[7]      The only other parties that may have an interest in the application are the former trustees.   An order was made on 17 July 2014 dispensing with service on Kenneth Huntley and Shirley Donaldson Huntley.   On that basis, it is appropriate that I deal with this application on the papers, which I now do.

[8]      Accordingly,  I  order  that  the  property  at  77c  Benson  Road,  Remuera, Auckland comprised in certificate of title NA54C/272 vest in John Norman Barratt- Boyes and Beverley Kaye Deverall as trustees of the Kenneth Huntley Family Trust

and in John Norman Barratt Boyes and Beverley Kaye Deverall as trustees of the

Shirley Huntley Family Trust as tenants-in-common in equal shares.

[9]      I reserve leave to apply in case further orders are required to implement the vesting of the property in the plaintiff trustees.  Such application may be made by

memorandum.

JA Faire J