Braithwaite v Dyer

[2018] NZHC 1574

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2017-419-278

[2018] NZHC 1574

UNDER

The Trustee Act 1956

IN THE MATTER

Of an application under section 59 of the Trustee Act 1956 to vest property in the

current trustees of the MARJORIE DYER FAMILY TRUST

BETWEEN

DAVID JOSEPH BRAITHWAITE, MEGAN KATHLEEN CHAMBERS AND MACKRELL MURCOTT TRUSTEES 2017

LIMITED as trustees of the MARJORIE DYER FAMILY TRUST

Plaintiffs

AND

MARJORIE JOAN DYER

Defendant

Hearing:	28 June 2018
Counsel:	K I Bond and R Hill for Plaintiffs
Judgment:	28 June 2018

ORAL JUDGMENT OF WHATA J

Solicitors:           Whitfield Braun Limited, Hamilton

BRAITHWAITE v DYER [2018] NZHC 1574 [28 June 2018]

[1]                  This is an application for judgment by default requesting that the present matter be listed for formal proof and determined on the papers. I have resolved to grant the judgment by default, however, I required the parties to attend, given certain factual matters that required clarification.

[2]                  By way of background, the present application concerns The Marjorie Dyer Family Trust. That Trust was settled by deed of trust dated 7 December 1999. The plaintiffs in this proceeding are the current trustees of the Trust. The first-named plaintiff, David John Braithwaite, is the brother of the defendant, Marjorie Joan Dyer. Megan Kathleen Chambers is her daughter and Mackrell Murcott Trustees 2017 Limited is a firm of accountants and will act as independent trustees.

[3]                  The Trust owns a portfolio of shares. The defendant, Marjorie Joan Dyer, who was previously a trustee of the Trust, remains registered as the owner of the shares.

[4]                  On 29 March 2017, Dr Satish Yadavaraj of Waikato Hospital certified that she is a health practitioner registered with the NZMC and assessed Marjorie as mentally incapable as she lacks the capacity to foresee the consequences of decisions about health, welfare or finances or to foresee the consequences of any failure to make such decisions. The doctor goes on to say:

She demonstrates the ability to understand and make her wishes known, but her actions are inconsistent with her words.

[5]                   Against that background, the present application is made, the present trustees having been appointed by David in the exercise of his powers under s 43 of the Trustee Act 1956, as the continuing trustee of the Trust. The purpose of the present application is to secure the shares into the names of the present trustees.

[6]                   The proceedings were served on all the relevant affected persons, including Marjorie’s attorneys, David and Owen Francis Dyer. He was served on 5 April 2018. Marjorie’s other daughter, Rachael, was served on 8 March 2018 and her son, Christopher, was served on 19 March 2018. Those parties have taken no steps to oppose the present judgment on the present application and hence it is a judgment by way of default.

[7]                   I enquired with Mr Bond as to the reasons why they had not appeared or have not lent their consent to the present application. Mr Bond has advised that, in fact, Marjorie may have separated from Mr Dyer. In relation to her other children, I am advised that they may be upset because they were not appointed as trustees to the Trust. There is some speculation in that but, even so, were they opposed to this particular application, they could have filed appearances accordingly.

[8]                   On that basis and being satisfied that Marjorie is mentally incapable of handling her own affairs and given her active power of attorney is one of the plaintiffs and her brother, I am satisfied that the orders as sought should be made. For completeness, those orders have been slightly modified to be as follows:

The right to transfer or call for the transfer of the portfolio of shares set out in Schedule 1 of the statement of claim, a copy of which is annexed to this judgment, and the right to receive the dividends and income thereof be vested in the names of David Joseph Braithwaite, Megan Kathleen Chambers and Mackrell Murcott Trustees 2017 Limited as trustees of the Marjorie Dyer Family Trust.

[9]There is no issue as to costs.