Beaven v Rea - [2016] NZHC 518

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000176 [2016] NZHC 518

BETWEEN
GWENDOLINE HARLAND BEAVEN

Plaintiff

AND

MARIE ANGELA REA Defendant

Hearing: (On the papers)

Judgment:

23 March 2016

JUDGMENT OF DUNNINGHAM J

[1] The plaintiff has filed a statement of claim seeking orders under ss 52(1)(h) and 58 of the Trustee Act 1956, to effect the vesting of a rural property in North Canterbury, Identifier 510310 (The Trust property) in her as the sole remaining trustee of the A M Beaven Trust. The orders are required because the defendant, as a former trustee of the Trust, has failed to sign the necessary documents to have her removed as a registered owner of the Trust property, and when there is an urgent need to effect a sale of that property.

[2] At the same time, the plaintiff has filed a without notice application for an injunction, which seeks an order vesting the Trust property solely in her as the remaining trustee. Ms Beaven also seeks consequential orders under s 58 to appoint her solicitor, Mark Brown of Geddes and Maciaszek, to execute any documentation necessary to give effect to the vesting order, and orders dispensing with the requirement for service and dispensing with the requirement to provide an undertaking as to damages. The application is supported by the affidavit of the
plaintiff, and by the accompanying memorandum of counsel.

BEAVEN v REA [2016] NZHC 518 [23 March 2016]

Factual background

[3] As Ms Beaven explains, she is now the sole remaining trustee under the A M Beaven Trust (the Trust) which was created on 21 November 1997. Ms Beaven’s late mother was the settlor of the Trust and, since her mother’s death, the terms of the Trust Deed mean that the power to remove and appoint trustees is now exercisable by Ms Beaven alone.

[4] The defendant, Ms Rea, was appointed a trustee of the Trust under a deed of appointment signed by Ms Beaven on 11 July 2014. As a consequence, the Trust property was transferred to both Ms Rea and Ms Beaven.

[5] The Trust property is the only asset of the Trust. Trust property, along with another property owned by a company in which Ms Rea and her husband were shareholders, was offered as security to financiers. The other property has been sold by mortgagee sale, but the sale price was insufficient to pay the debt owed to the mortgagees, there being a shortfall of around $250,000.

[6] As a consequence of there being a shortfall, and because the mortgagees have issued notices under s 119 of the Property Law Act 2007, the Trust property was scheduled for mortgagee sale by auction on 11 March 2016.

[7] Ms Beaven has attempted to have the Trust property refinanced but was advised by a potential lender that that would not occur while Ms Rea remained on the title.

[8] Ms Beaven’s solicitor prepared a deed of retirement of trustee for Ms Rea and associated documents, but despite…

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 Beaven v Rea

Details

AGLC: Beaven v Rea [2016] NZHC 518
Case: [2016] NZHC 518
Decision Date: 23 March 2016

CaseChat Overview and Summary

Gwendoline Harland Beaven has applied to the Christchurch Registry of the High Court of New Zealand for orders to vest the North Canterbury rural property, Identifier 510310, solely in her as the sole remaining trustee of the A M Beaven Trust. The defendant, Marie Angela Rea, a former trustee of the Trust, has failed to sign the necessary documents to have her removed as a registered owner of the property, which is required due to the urgent need to sell the property. The plaintiff has also filed a without notice application for an injunction seeking the same orders and additional consequential orders under s 58 of the Trustee Act 1956 to appoint her solicitor, Mark Brown, to execute any documentation necessary to give effect to the vesting order, and orders dispensing with the requirement for service and dispensing with the requirement to provide an undertaking as to damages.

The legal issues arising from this case include whether the Court should grant the orders sought by the plaintiff, considering the circumstances envisaged by s 52(1)(h) of the Trustee Act and the Court's inherent jurisdiction to control a trustee's actions. Counsel for the plaintiff argues that the circumstances warrant the grant of the orders, as the defendant has been removed as a trustee, and she has failed to cooperate in signing the required documents. Additionally, counsel submits that the overall convenience and the interests of justice favor the mandatory injunction, as the proposed sale will clear the mortgage arrears and allow the plaintiff to explore refinancing options.

The Court found that the without notice application was appropriate, as requiring the plaintiff to proceed on notice would cause delay and prejudice, and the interests of justice required the application to be determined without serving notice of the application. The Court made the following orders: (a) an order vesting the Trust property solely in Gwendoline Harland Beaven as the sole remaining trustee of the A M Beaven Trust; (b) an order authorizing Mark Brown to execute on behalf of the defendant any documentation necessary to give effect to the vesting order; (c) an order dispensing with the requirement to serve the application for injunction; (d) an order dispensing with the requirement for the plaintiff to provide an undertaking as to damages; and (e) costs are reserved.

In conclusion, the Court granted the plaintiff's application for orders vesting the Trust property solely in her and the additional consequential orders sought. The Court found that the circumstances justified the grant of the orders and that the without notice application was appropriate in this case.

Orders