Cairns ex parte Garrickfield Trust

[2020] NZHC 2738

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-488

[2020] NZHC 2738

UNDER

the Trustee Act 1956

BETWEEN

ROBERT GRAHAM CAIRNS, ROBERT MALCOLM CAIRNS and LEECH & PARTNERS TRUSTEES (2004) LIMITED,

as trustees of the GARRICKFIELD TRUST Applicants

Hearing:	(Determined on the papers)
Counsel:	S J Jamieson and G A Ryan for the Applicants
Judgment:	16 October 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 16 October 2020 at 3.15pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 16 October 2020

CAIRNS ex parte Garrickfield Trust [2020] NZHC 2738 [16 October 2020]

[1]    This proceeding concerns the  Garrickfield  Trust  (the  Trust)  settled  in  June 2006. The original trustees were Robert Graham Cairns, his wife, Laura Cairns (Laura) and Leech & Partners Trustees (2004) Ltd.

[2]    Unfortunately, Laura has been diagnosed with advanced dementia and the medical evidence is that she has lost the capacity to understand the nature of legal documents. As a result, the other two trustees exercised the power available to them under the Trust Deed and in s 43 of the Trustee Act 1956 to remove Laura as trustee. Laura was replaced by Robert Malcolm Cairns, being Laura and Robert Graham Cairns’ son.

[3]I am satisfied, based on the evidence produced, that s 43 was properly invoked.

[4]    While the Deed of Removal and Appointment was effective to remove Laura as trustee and to appoint her son as replacement trustee, the present trustees (the applicants) need to seek a vesting order under s 52 of the Act to enable the registration of the transfer of a rural property owned by the Trust into the names of the applicants. This step is necessary as Laura lacks the capacity to sign the appropriate transfer documents.

[5]    The Trust owns a property at 1653 Rakaia Barrhill Methven Road, Ashburton District.

[6]    To give effect to the vesting order and to deal with issues as to service and representation, the applicants apply for the following procedural orders:

(a)an order permitting this proceeding to be commenced by way of the originating application procedure;

(b)an order dispensing with service; and

(c)an order that Laura does not need to be represented by a litigation guardian.

Use of originating application procedure

[7]    Leave is required for this proceeding to be commenced by way of originating application as the application is not one that may be commenced as of right under pt 19 of the High Court Rules 2016. Applications for vesting orders such as these are now routinely made by way of originating application. Vesting order applications have been characterised as administrative in nature and that is often the case. In straightforward and uncontested applications such as this, it is appropriate that a cost efficient and practical procedure be adopted.

[8]    Accordingly, leave is granted for the originating application procedure to be used.

Litigation guardian and service

[9]    As Laura is incapacitated, r 4.30 High Court Rules 2016 requires her to have a litigation guardian unless the Court directs otherwise.

[10]   I am satisfied in this case it is unnecessary to appoint a litigation guardian. Given the evidence as to Laura’s incapacity, such would serve no real purpose and may well cause her distress. Laura has been validly removed as trustee and as such is not entitled to remain on the titles of the Trust property. Laura is a beneficiary of the Trust and her rights in that regard are not affected by the vesting orders.

[11]   Accordingly, there is an order dispensing with the appointment of a litigation guardian.

[12]   Similarly, I am satisfied there is no need for any other party to be served. Robert Malcolm Cairns is the final beneficiary of the Trust and clearly he supports the application.

[13]   I am not told if Robert Malcolm Cairns has children – they would be discretionary beneficiaries – but even if they exist and are adult, I do not see anything to be gained by them being served.

[14]   Accordingly, there is an order dispensing with the need for the application to be served.

Vesting order

[15]As noted above, the substantive orders sought concern a rural property.

[16]   Given I am satisfied that Laura was appropriately removed as trustee and replaced by her son as trustee, vesting orders are necessary to allow the existing trustees to carry out their duties.

[17]   Accordingly, pursuant to s 52 of the Trustee Act, the following orders are made:

(a)An order vesting the land in:

(i)Record of Title identifier CB45C/261 (Canterbury Land Registry) being Lot 1 Deposited Plan 3698 and Lot 1 Deposited Plan 79299; and

(ii)Record of Title identifier CB31A/1056 (Canterbury Land Registry) being Rural Section 7326, Rural Section 16989, Part Rural Section 14739 and Part Rural Section 34123

into the names of Robert Graham Cairns, Robert Malcolm Cairns and Leech & Partners Trustees (2004) Limited.

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

Associate Judge Lester

Solicitors:
Tavendale and Partners, Christchurch