Brown v Creed

[2014] NZHC 2824

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2014-442-77 [2014] NZHC 2824

UNDER

Part 19 of the High Court Rules and s 52

of the Trustee Act 1956

IN THE MATTER

of an application for removal of an incapacitated trustee and vesting of land in the remaining trustees

BETWEEN

JOHN HAMISH FALCONER BROWN and ANNA HARRIET BROWN as Trustees of the J H F and A H Brown Family Trusts

Applicants

AND

DENNIS EDWARD CREED Respondent

In Chambers:	On papers
Judgment:	13 November 2014

JUDGMENT OF THE HON JUSTICE KÓS

[1]      The applicants are two of the three trustees of the J H F and A H Brown Family Trust (Trust).  The Trust was established by Deed on 11 July 2001.  The third trustee is the respondent, Mr Creed.  He is a retired solicitor.

[2]      The trustees are the registered proprietors of a property at 56A Polygon Road, St Heliers, Auckland.   It is to be sold by auction next Wednesday, 19 November

2014.

[3]      Sadly, the third trustee, Mr Creed, is now permanently incapacitated.  Filed in support  of  this  application  is  an  affidavit  from  Dr  Charles  Riley,  a  medical

BROWN & ANOR as Trustees of the J H F and A H Brown Family Trusts v CREED [2014] NZHC 2824 [13 November 2014]

practitioner in Nelson.  He deposes that Mr Creed is no longer mentally capable of making decisions regarding his health, welfare, property and affairs.  He suffers from dementia. An order has been made for his compulsory treatment as an in-patient at a rest home facility in Nelson.

[4]      The application before me seeks:

(a)      An   order   dispensing   with   service   of   this   application   on   the respondent; and

(b)an order that the property described as an estate in fee simple as to one half share in Lot 15 Deposited Plan 18034 and an estate in lease hold in respect of Flat 2, Deposited Plan 100354 and being the interest described in Certificate of Title NA54C/1249 North Auckland Land Registration District be vested in John Hamish Falconer Brown and Anna Harriet Brown, the applicants.

[5]      The Deed provides that the trustees be not less than two in number.    It contains a power to appoint a new trustee in substitution for an existing trustee.  Or to appoint additional trustees. The power is vested in Mr and Mrs Brown.

[6]      The power in the Deed has not been exercised.  Mr Brown has deposed he and his wife do not wish to appoint a further trustee.

[7]      In  the  circumstances,  and  given  the  imminent  sale,  I  accept  that  it  is appropriate to now make a vesting order in accordance with s 52 of the Trustee Act

1956.   I am also satisfied that Mr Creed’s unfortunate circumstances are such that service on him should be dispensed with.

Result

[8]      There will be orders in accordance with [4] above.  Costs will be met from the funds of the trust.

Solicitors:

Pitt & Moore, Nelson for Applicants

Stephen Kós J