Black Family Trust

[2019] NZHC 2950

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2480

[2019] NZHC 2950

UNDER

Section 52 of the Trustee Act 1956

IN THE MATTER

of The Black Family Trust

IN AN APPLICATION

by STEPHANIE LOUISE BLACK RUSSELL, PHILIPPA CATHERINE

BARRETT and JENNIFER GLENISE BLACK
Applicants

FOR AN ORDER

As to the removal of a trustee and vesting orders

On the papers
Appearances:	A Peat for Applicants
Judgment:	12 November 2019

JUDGMENT OF WALKER J

This judgment was delivered by me on 12 November 2019 at 4.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

The Black Family Trust [2019] NZHC 2950 [12 November 2019]

[1]    The applicants, Stephanie Russell, Philippa Barrett and Jennifer Black, are three of the four trustees of the Black Family Trust (the Trust). The fourth trustee is Graham Black. The Trust was settled in 1997 by Mr Black and his wife Jennifer Black. The final beneficiaries of the Trust are their children, Stephanie and Philippa.

[2]    Sadly, Mr Black is suffering from advanced Alzheimer’s dementia that is both progressive and irreversible. The evidence from Mr Black’s doctor is that Mr Black is unable to exercise judgement and would almost certainly not recall any details of any trusts in respect of which he is a trustee.

[3]    Jennifer Black holds active enduring powers of attorney in relation to property and in relation to personal care and welfare for her husband. This does not permit Mrs Black to exercise her powers under the enduring power of attorney to effect her husband’s retirement as a trustee.1

[4]    The applicants therefore make this ‘without notice’ originating application for orders removing Mr Black as trustee, vesting title in properties held under the Trust in the remaining trustees and ancillary orders. This is necessary to enable the Trust to continue to operate, for the Trust’s administration and to deal with property held by the Trust in a manner acceptable to Land Information New Zealand. In my assessment, it is therefore in the best interests of the beneficiaries.

[5]    I consider it is appropriate for these proceedings to be brought by way of originating application. Leave to do so is granted accordingly. I am satisfied that no useful purpose would be served in appointing a litigation guardian for Mr Black.2

[6]    I am also satisfied that it is appropriate to dispense with service of the application on Mr Black and any of the discretionary beneficiaries to the Trust. Service on Mr Black in the circumstances serves no useful purpose. The orders sought will not change any of the beneficiaries’ rights or obligations under the Trust provisions.

1      Re Godfrey Family Trust [2017] 3 NZLR 198.

2      Docherty v Docherty [2013] NZHC 1885 at [29]-[30].

[7]I accordingly make orders:

(a)Granting leave to commence this proceeding by way of originating application;

(b)Dispensing with service on Graham Allister Black and the beneficiaries under the Black Family Trust;

(c)Dispensing with any need to appoint a litigation for Graham Allister Black;

(d)Removing Graham Allister Black as a trustee of the Black Family Trust; and

(e)Pursuant to s 52(1)(b)(i) of the Trustee Act 1956, vesting the following properties in the names of Stephanie Louise Black Russell, Philippa Catherine Barrett, and Jennifer Glenise Black as the continuing trustees of The Black Family Trust:

(i)the freehold estate situated at 3 Hibiscus Avenue, Snells Beach, being the land contained within certificate of title 248100 and having the legal description Lot 2 Deposited Plan 361083; and

(ii)the cross lease situated at 2 Gifford Street, St Heliers, being the land contained within certificate of title NA59A/333 and made up of:

1.  fee simple – half share with the legal description Lot 13 Deposited Plan 16941; and

2.  leasehold with the legal description Flat 2 Deposited Plan 105708.

......................................................

Walker J