Cade v Cade - [2016] NZHC 1624

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2016-425-000069 [2016] NZHC 1624

UNDER the Trustee Act 1956

IN THE MATTER

of the A E Cade Family Trust

BETWEEN

MICHAEL GRANT CADE AND ANOTHER

Plaintiffs

AND

ALEXANDER EDWARD CADE Defendant

Hearing: On the papers

Appearances:

S Donaldson for Plaintiffs

Judgment:

18 July 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to vesting orders and service

Introduction

[1] The plaintiffs, Michael Cade and Paul Cade, as current trustees of the A E Cade Family Trust (the Trust) seek an order, along with various other administrative orders, vesting the following trust properties currently held by the defendant, Alexander Cade (Mr Cade):

(a) a residential property at 254 North Road, Invercargill, CT SL97/277, Lot 1, Deposit Plan 1193, Southland District; and

(b)a residential property at 2 Mincher Road, Queenstown, CT OT2D/692, Lot 27 Deposit Plan 10575, Otago District.

CADE v CADE [2016] NZHC 1624 [18 July 2016]

[2] These orders are sought because Mr Cade, in whose name the properties are currently jointly registered, has been removed as a trustee because he was mentally incapable of exercising his powers and duties.

Background

[3] On 21 April 1999 Mr Cade settled the Trust. Mr Cade and his wife, Diane Cade (Mrs Cade), were named as trustees. The named “discretionary capital beneficiaries” were the sons of Mr Cade, Paul and Michael, and the named “discretionary income beneficiaries” were Mr and Mrs Cade, Paul and Michael and any child or remoter issue of any of the “discretionary capital beneficiaries”.

[4] Mr and Mrs Cade remain married. Sadly, however, Mr Cade has been diagnosed with Progressive Alzheimer’s Dementia. He is currently living at the dementia wing of Rowena Jackson Retirement Village. Dr Matthew Sloane, the general practitioner to Mr Cade, has provided an affidavit as to Mr Cade’s incapacity.

[5] Because Mr Cade no longer had mental capacity to carry out his obligations as a trustee he was removed from the role pursuant to s 43 of the Trustee Act 1956 (the Act). A deed of retirement of trustee and appointment of new trustee dated 18
April 2016 was entered into retiring Mr Cade as a trustee of the Trust. By that same deed Paul and Michael were made trustees of the Trust.

[6] The deed vested the trust property in the new trustees, it is not possible to vest land in this way. In order for the land to be vested in the plaintiffs, they required a vesting order under s 52 of the Act.

[7] Before turning to the matter of the vesting orders themselves, however, there are some administrative matters I must first deal with.

Administrative matters

[8] The plaintiffs have commenced this proceeding under pt 18 High Court

Rules. Rule 18.4 provides that to commence a proceeding under this part the

plaintiffs must file a statement of claim accompanied by an application for directions as to service and representation under r 18.7. This application must be supported by the necessary information to enable the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cade v Cade

Details

AGLC: Cade v Cade [2016] NZHC 1624
Case: [2016] NZHC 1624
Decision Date: 18 July 2016

CaseChat Overview and Summary

In the case of Cade v Cade, the plaintiffs, Michael Cade and Paul Cade, sought vesting orders to transfer properties from the defendant, Alexander Cade, to the plaintiffs as trustees of the A E Cade Family Trust. Alexander had been removed from his position as a trustee due to his incapacity caused by Progressive Alzheimer’s Dementia. The court was required to determine whether the plaintiffs could proceed without a litigation guardian for Alexander, and whether service on Alexander and other beneficiaries could be dispensed with. The court found that Alexander was an incapacitated person as defined in the High Court Rules, and that there was no need for a litigation guardian given the straightforward nature of the proceedings. The court also found that dispensing with service was appropriate, considering the beneficiaries were the plaintiffs themselves, and their children also lived with them. The court granted the vesting orders to ensure the current trustees could deal with the properties in accordance with their duties. The final orders included allowing evidence by affidavit, declaring Alexander an incapacitated person, dispensing with the requirement for a litigation guardian, dispensing with service, and vesting Alexander’s interest in the specified properties to the current trustees.

Orders