Brooker v Bates

[2023] NZHC 337

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

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

CIV-2022-476-14

[2023] NZHC 337

IN THE MATTER

of an order for a Vesting Order pursuant to s 112 of the Trusts Act 2019

BETWEEN

EDITH MARGARET BROOKER

Applicant

AND

SHARON MARGARET BATES (also

known as SHARON
MARGARET LOCKERBIE-BATES)

Respondents

Hearing:	(On the papers)
Counsel:	K I McLellan for Applicant
Judgment:	28 February 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

BROOKER v BATES [2023] NZHC 337 [28 February 2023]

[1]                 Edith Margaret Brooker (Edith) has brought an application which, in its ultimate form, seeks a vesting order in relation to land held in a family trust that Edith settled, known as the W A T and E M Lockerbie Family Trust (the Trust).

[2]                 The respondent in this proceeding, Sharon Margaret Bates (Sharon), is one of Edith’s daughters and one of the trustees of the Trust.

[3]                 Unfortunately, the relationship between Edith and Sharon has become estranged to the point where Edith has had no contact with Sharon for over two years. The last known address that Edith or her wider family had for Sharon was in Queensland, Australia, but that address is no longer current and the wider family has no forwarding address or contact details for Sharon, nor has a social media search turned up any contact information for her.

[4]                 The practical issue facing Edith is that she is concerned when she comes to sell the property as trustee, she will not be able to do so when she has no ability to contact Sharon.

[5]The Trust Deed has been produced to the Court.

[6]                 Under cl 3.2 of the Trust Deed, the power to appoint new trustees is vested in the Settlor during her lifetime, that is, in Edith. It follows that Edith has the power under the Trust Deed to remove Sharon as trustee.

[7]                 Accordingly, this is not a case where the Court must resort to the powers under s 112 of the Trusts Act 2019 to remove Sharon. It is not difficult or impracticable for Edith to remove Sharon without the assistance of the Court.

[8]                 Edith has produced to the Court a Deed of Removal of Trustee removing Sharon as trustee as at 3 February 2023.

[9]                 The Trust owns a property in Oamaru and a copy of the Certificate of Title has been produced to the Court. The Certificate of Title is in the names of Edith, Sharon and Tracy Ellen Donohue (Edith’s other daughter).

[10]              With Sharon having been removed as trustee pursuant to Edith’s undoubted power to do so, I am content that a vesting order should be made. Edith could have relied on the powers under the Trusts Act 2019 to obtain a vesting order, but having commenced this application some time ago, I consider it appropriate to make a vesting order to enable Edith to bring this proceeding to a conclusion.

Procedural applications

[11]              Edith seeks leave to use the originating application procedure. I am satisfied that  procedure  is  appropriate  and  leave  is  given  for   it  to  be  used.    This  is    a straightforward application where formal pleadings and interlocutory steps are not required. In any event, Edith has lost contact with Sharon, as has Edith’s wider family, leading Edith to seek an order dispensing with service. I make that order. I dispense with service as Edith has the power as Settlor (not as trustee) to remove Sharon as trustee. Edith has done that. Further, Sharon has essentially abandoned her role of trustee. Service would serve no real purpose. I also direct that it is unnecessary for any other party to be served. The amendment to the registered proprietors of the Trust property does not impact on the rights of beneficiaries of the Trust. Accordingly, there is no need for any other party to be served.

[12]              With Sharon having been removed as trustee, it is now necessary to regularise the situation with the ownership of the Trust’s property. I make an order vesting Certificate of Title OT9C/1420, Otago Registry, in Edith Margaret Brooker and Tracy Ellen Donohue.

[13]No order as to costs is sought and so none is made.

Associate Judge Lester

Solicitors:

Dean & Coleman Law, Oamaru (for the Applicant)