Bleeker

[2023] NZHC 3511

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2022-476-39

[2023] NZHC 3511

UNDER

the Trustee Act 1956

IN THE MATTER

of an application for a vesting order in respect of property

BETWEEN

SIMON JACOBUS BLEEKER and BEN NICOLAS GEANEY

Applicants

Hearing:	On the papers
Counsel:	D R Forman for Applicants
Judgment:	5 December 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 5 December 2023 at 3.00 pm pursuant to rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

RE BLEEKER [2023] NZHC 3511 [5 December 2023]

[1]                The applicants apply as trustees of the Makikihi Library Hall Trust (the Trust) for orders that an asset of the Trust, namely the land registered under Record of Title CB13K/697 and known as the Makikihi Hall, vest in them.

[2]                The matter originally came before me last year. On 1 December 2022, I held a telephone conference with counsel and issued a minute asking for more information to  support  the  application.   That  information  was  provided  to  the  Court  on    29 November 2023.

[3]                I am satisfied there is sufficient material before the Court to allow the application to be determined on the papers.

Background

[4]                A library club was formed at Makikihi in 1899. In 1910, a businessman of Makikihi, James Meehan, provided funding to build the Makikihi Hall. Around 1980 the land upon which the Makikihi Hall was built was acquired from the University of Canterbury.

[5]                The Makikihi Library Hall Trust was formed by deed of trust dated 1 June 1982 to acquire the Makikihi Hall and maintain library hall facilities for the residents of the Makikihi area.

[6]                The settlor of the Trust was Douglas James Blackie, a solicitor in Waimate. The original trustees of the Trust were Michael John Crowe and Charles John Fowler. They were registered as the proprietors of the Makikihi Hall.

[7]                The original trustees of the Trust have both died. Mr Crowe died in August 2005. Mr Fowler died in December 2015.

[8]Clause 7 of the Trust Deed provides as follows:

THAT the number of trustees pursuant to this trust shall be not less than two

(2) or more than three (3) and in the event of the number of trustees being less than two as a result of the death or resignation of one or more of the trustees hereunder the remaining trustee or trustees as the case may be may appoint by Deed further trustees but not so as to cause the number of trustees to be more

than three (3). Should there be no trustees surviving then the executors of the last surviving trustee may appoint by Deed in writing two further trustees who shall have all the rights and powers of the original trustees pursuant to this Trust Deed.

[9]                In his will, Mr Fowler appointed his wife, Frances Mary Fowler as executor. As the sole executor of Mr Fowler’s estate, Mrs Fowler holds the power of appointment under the Trust Deed. While Mrs Fowler never applied for probate of her husband’s last will, I am satisfied her power of appointment was derived under the will and not from any grant of probate.1

[10]            Under a deed of appointment of new trustees dated 30 June 2022, Mrs Fowler appointed the applicants as trustees of the Trust.

[11]            The applicants require an order vesting the Makikihi Hall in their names so that their trusteeship is properly recorded, and they can perform their duties as trustees.

Leave to commence proceeding under pt 19

[12]            The applicants apply for leave to commence this proceeding by way of originating application.2 An application for a vesting order is not a proceeding that may be commenced as of right under pt 19 of the High Court Rules 2016. Under r 19.5(1) of the High Court Rules, the Court may in the interests of justice permit a proceeding to be commenced by originating application. Under r 19.5(2), such applications may be made on a without notice basis.

[13]            Applications for vesting orders such this are now routinely made by way of originating application. It is often the case, as it is here, that vesting order applications are administrative in nature. With a straightforward, uncontested application it is appropriate that the most cost effective and practical procedures are adopted. I grant leave for the proceeding to be commenced by way of originating application.

1      Chetty v Chetty [1916] 1 AC 603. Counsel also referred me to s 43(1) of the Trustee Act 1956.

2      High Court Rules 2016, pt 19.

The substantive application

[14]            The application for a vesting order is made under s 52 of the Trustee Act 1956.3 Relevant for present purposes, s 52(1)(a) of the Act provides:

(1)Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

(a)where the court appoints or has appointed a trustee of any land or interest therein, or where a trustee of any land or interest therein has been appointed out of court under any statutory or express power:

…

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

[15]            Given the present circumstances, I have no hesitation in making the order sought. I am satisfied Mrs Fowler properly exercised her power as executor of her husband’s estate to appoint the applicants as trustees and that they have both consented to their appointments and are prepared to carry out their duties as trustees of the Trust. The order sought is necessary to ensure the Makikihi Hall is correctly vested in the names of the trustees for the time being and so that the affairs of the Trust can be administered for the benefit of the community.

[16]            While it does not affect the result of this application, upon reading the affidavits filed an issue arises in my mind whether all the uses to which the Makikihi Hall is being put, while clearly beneficial to the community, conform to the objects of the Trust. The trustees might wish to take advice concerning that issue.

Result

[17]The application for a vesting order is granted.

3      The Trusts Act 2019 does not apply to this application. See cl 11(2) of Schedule 1 of the Trusts Act and Lewis v Lewis [2021] NZHC 585 and Mason v Stocker [2022] NZHC 564.

[18]            There shall be an order that the property known as the Makikihi Hall, being all the land in Identifier CB13K/697 vests in the names of the applicants Simon Jacobus Bleeker and Ben Nicolas Geaney

[19]No order for costs is made.

O G Paulsen Associate Judge

Solicitors:
RSM Law, Timaru