Bushett v Bushett

[2019] NZHC 3424

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-97

[2019] NZHC 3424

IN THE MATTER

of an application under s 52 Trustee Act 1956 for a vesting order

BETWEEN

CHRISTOPHER CHARLES BUSHETT, MICHELLE ANN BUSHETT AND CHB TRUSTEES (CMB) LIMITED

Applicants

AND

BEVERLEY ELIZABETH BUSHETT

Respondent

On the papers
Counsel:	D Kerr for Applicants
Judgment:	19 December 2019

JUDGMENT OF ELLIS J

[1]    The trustees of the CMB Trust (the Trust) own a property at 225 Porangahau Road, Waipukerau. Following the death of one of the trustees (Leslie George Bushett) and the retirement of another, Title to the property has, since 3 August 2016, been held in the names of the two surviving trustees as at that date: Beverley Elizabeth Bushett and CHB Trustees (CMB) Limited. The surviving beneficiaries are Mrs Bushett, her two children (Christopher Charles Bushett and Michelle Ann Bushett) and Christopher’s two children (Lewis James Bushett and Rebecca Hazel Bushett). Lewis and Rebecca are minors.

[2]    There is medical evidence before the Court to the effect that Beverley is suffering from dementia and, since May this year, has not had capacity to manage her

BUSHETT AND OTHERS v BUSHETT [2019] NZHC 3424 [19 December 2019]

own affairs. As a result, she was removed as a trustee of the Trust earlier this month. Christopher and Michelle have been appointed as trustees in her stead.

[3]    The three present trustees have now filed an originating application seeking an order vesting the Porangahau Street property in them in order that they may sell the property (which was formerly occupied by Beverley but is now vacant due to her being in full-time and permanent care). Ancillary to that they seek:

(a)leave to commence by way of originating application without notice to any other person; and

(b)an order that a litigation guardian for Beverley, Lewis and Rebecca need not be appointed.

[4]An affidavit from Christopher supporting the application has also been filed.

[5]    It is appropriate for these proceedings to be brought by way of originating application. There is ample High Court authority for that course.

[6]    I am also satisfied that it is appropriate that the application be brought and determined without notice. As already recorded, the only beneficiaries of the Trust are Christopher and Michelle (who are two of the applicants) and Christopher’s minor children (in whose interest he acts). I further accept that, in terms of r 4.30 of the High Court Rules, there is nothing to be gained by appointing a litigation guardian for Beverley because she would be unlikely to understand either the nature of any advice received or the nature of the proceedings.

[7]    As to the substantive matter, s 52 of the Trustee Act 1956 empowers the Court to make vesting orders in cases such as this. Again, there is ample authority to that effect. In short, I am satisfied that:

(a)Beverley is under a disability for the purposes of s 52(1)(b)(i);

(b)Beverley is appropriately regarded as removed as a trustee in terms of the Trust Deed and Christopher and Michelle have been validly appointed in her stead;

(c)In order to enable the trustees to deal with Porangahau Street property in accordance with the Trust Deed it is necessary to make the vesting order sought.

[8]Accordingly, I make orders:

(a)granting leave to bring the present application by way of originating application and without notice; and

(b)under s 52(1)(b)(i) of the Trustee Act 1956, that the property at 225 Porangahau Road, Waipukerau, comprising:

(i)All that parcel of land containing 4026 square metres more or less, being Lot 1 on Deposited Plan 348341 and more particularly described in Certificate of Title 198412, Hawke’s Bay Land Registration District; and

(ii)All that parcel of land containing 4026 square metres more or less, being Lot 2 on Deposited Plan 348341 and more particularly described in Certificate of Title 198413, Hawke’s Bay Land Registration District; and

and currently registered in the names of Beverley Elizabeth Bushett and CHB Trustees (CMB) Limited as trustees of the CMB Trust now vests in Christopher Charles Bushett, Michell Ann Bushett and CHB Trustees (CMB) Limited as trustees of CMB Trust.

Rebecca Ellis J

Solicitors:

Chrystall Law, Waipukurau for Applicants