Betty Clarke Trust

[2022] NZHC 1001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2022-404-000729

[2022] NZHC 1001

UNDER

The Trustee Act 1956

AND UNDER

Part 19 of the High Court Rules

IN THE MATTER OF

the BETTY CLARKE TRUST

AND

IN THE MATTER OF

ANNE DEBORAH MCCREATH and

STEPHEN JOHN CLARKE as trustees of the BETTY CLARKE TRUST

Applicants

Hearing:	On the papers
Counsel:	M Phillipps
Judgment:	11 May 2022

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 11 May 2022 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Vicki Ammundsen Trust Law Limited, Auckland

MCCREATH (the BETTY CLARKE TRUST) [2022] NZHC 1001 [11 May 2022]

[1]                 On 2 March 1995, Bessie Joan Clarke settled a trust – the Betty Clarke Trust – in favour of her children and their families, appointing her daughter Anne McCreath and herself as the original trustees.

[2]                 Bessie Clarke is no longer capable of managing her own affairs and has been removed as a trustee; there have been several other changes of trustee since the settlement date.

[3]                 The principal asset of the trust is a residential property at 1/118 Ladies Mile, Ellerslie (the property) which was transferred into the names of Bessie and Christopher Duncan Ward, in their then capacities as trustees of the trust, on 4 April 2001. Other trust property is comprised of bank deposits and shares.

[4]                 The current trustees, Anne McCreath and her brother Stephen Clarke, wish the property to be vested in them as trustees. Under the Trusts Act 2019, it would be sufficient for them to simply notify the Registrar/General of Lands in order to transfer the property into their names but, under the transitional provisions in the 2019 Act, the relevant transactions pre-date the 2019 Act so that it is necessary to resort to the procedure routinely adopted by the Court, under the Trustee Act 1956, prior to the legislative change.

[5]                 I am satisfied that the originating application procedure under pt 19 of the High Court Rules 2016 is appropriate. This is a routine procedure in that the other principal beneficiary of the trust, Andrea’s and Stephen’s brother Russell Clarke, consents to the orders sought in the application and the interests of Bessie’s grandchildren are in the hands of their parents. In the circumstances, I agree that service of the application on the other beneficiaries is unnecessary and it is appropriate to make to make the orders sought.

[6]Accordingly, I make the following orders:

(a)directing that the application may be made by originating application under pt 19 of the High Court Rules 2016 and dispensing with service of the proceeding;

(b)pursuant to s 52 and 59 of the Trustee Act 1956:

(i)vesting the right, title and interest of Bessie Joan Clarke and Harward Trustee Company Limited as former trustees of the Betty Clarke Trust, in the property at 1/118 Ladies Mile, Ellerslie, Auckland as described in Identifier NA 45D/81 being Unit A and Accessory Unit 1 and 9, Deposited Plan 88227 (the property) in Anne Deborah McCreath and Stephen John Clarke as current trustees of the Trust; and

(ii)authorising the Registrar-General of the Land (Land Information New Zealand) to record the transfer of the property to the applicants as registered proprietors to give effect to these vesting orders; and

(c)directing that the costs of this application be met from the funds or assets of the trust.

Toogood J