Cheyne v Cheyne - [2019] NZHC 2909

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-000100

[2019] NZHC 2909

UNDER The Court’s Inherent Jurisdiction and Section 52 of the Trustee Act 1956

IN THE MATTER

of an application to remove a trustee and to vest property in the continuing trustees

BETWEEN

RAYWYN MARGARET CHEYNE and NICOLA MARGARET STANDRING as

Trustees of the Macetown Trust Applicants

AND

DESMOND JOHN CHEYNE

Respondent

Hearing: Determined on the papers

Counsel:

F Barton and H Scott for Applicants

Judgment:

7 November 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 November 2019 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Anderson Lloyd, Dunedin

CHEYNE and STANDRING as Trustees of the Macetown Trust v CHEYNE [2019] NZHC 2909 [7 November 2019]

[1] Raywyn Margaret Cheyne (Raywyn) and Desmond John Cheyne (Desmond) are husband and wife. Raywyn, Desmond and their daughter, Nicola Margaret Standring (Nicola), are presently the trustees of the Macetown Trust.

[2] The Macetown Trust was created by a Deed of Trust dated 21 September 1999. The beneficiaries of the Trust are Desmond and Raywyn, their children and grandchildren.

[3] The trustees hold two residential properties (the Trust properties) in trust namely:

(a)2 Everton Road, Dunedin (Computer Freehold Register OT7D/1179); and

(b)3 Adamson Drive, Queenstown (Computer Freehold Register OT5A/4).

[4] Desmond and Raywyn have been living at 2 Everton Road, Dunedin. Desmond is incapacitated. He suffers from mental and physical illnesses and needs to move to a new home that better suits his needs. A property has been found at the Chatsford Retirement Village but due to Desmond’s inability to act the trustees cannot exercise their powers to finance the purchase. The Trust Deed does not contain any provision to remove Desmond as a trustee. Raywyn and Nicola are therefore seeking the assistance of the court.1

[5]Raywyn and Nicola have applied for orders:

(a)For leave to bring this proceeding by way of originating application;

(b)Dispensing with service of the application on Desmond;

(c)Dispensing with the appointment of a litigation guardian in respect of Desmond under r 4.30 of the High Court Rules 2016;

1 Re Borich [2014] NZHC 780.

(d)Removing Desmond as a trustee;

(e)Vesting the Trust properties in them as continuing trustees.

[6] The evidence is that Desmond suffers from Vascular Dementia and several heart conditions. He wholly lacks competence to manage his affairs or to understand and carry out the role of a trustee. He has no prospect of regaining such capacity or capability and any person who might be appointed to represent Desmond would be incapable of explaining to him the nature of the advice or the purpose of this proceeding. Desmond will be unable to foresee the consequences of any orders that might be made by the Court and would react with confusion and anxiety if he was notified of the existence of these proceedings and be expected to participate in them.

[7] It is…

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 Cheyne v Cheyne

Details

AGLC: Cheyne v Cheyne [2019] NZHC 2909
Case: [2019] NZHC 2909
Decision Date: 7 November 2019

CaseChat Overview and Summary

The case of Cheyne v Cheyne involves an application by Raywyn Margaret Cheyne and Nicola Margaret Standring, who are trustees of the Macetown Trust, to remove Desmond John Cheyne, another trustee and their father, from his position due to his incapacitation. The trust owns two residential properties in Dunedin and Queenstown. Desmond suffers from vascular dementia and other health issues, rendering him unable to manage his affairs or understand and carry out his role as a trustee. The application seeks orders to remove Desmond as a trustee and to vest the trust properties in Raywyn and Nicola as continuing trustees. The legal issues the court had to decide were whether to grant leave to bring the proceeding as an originating application, to dispense with service of the application on Desmond, and to remove Desmond as a trustee under the Court’s inherent jurisdiction and section 52 of the Trustee Act 1956. The court found that it was appropriate to grant leave for the proceeding to be brought as an originating application, to dispense with service on Desmond, and to remove Desmond as a trustee. The court also found that the application was brought in Desmond's best interests and that nothing would be gained from appointing a litigation guardian. The court concluded that it was appropriate to remove Desmond as a trustee and vest the trust properties in Raywyn and Nicola as continuing trustees. This outcome ensures the efficient administration of the trust affairs and provides for Desmond's care.

The court's reasoning was based on the evidence of Desmond's incapacity and the lack of any provision in the Trust Deed to remove a trustee. The court found that it was appropriate to grant leave for the proceeding to be brought as an originating application, to dispense with service on Desmond, and to remove Desmond as a trustee. The court also found that the application was brought in Desmond's best interests and that nothing would be gained from appointing a litigation guardian. The court concluded that it was appropriate to remove Desmond as a trustee and vest the trust properties in Raywyn and Nicola as continuing trustees. This outcome ensures the efficient administration of the trust affairs and provides for Desmond's care. The court made orders granting leave for the proceeding to be brought as an originating application, dispensing with service of the application on Desmond and the beneficiaries, removing Desmond as a trustee of the Macetown Trust, and vesting the trust properties in Raywyn and Nicola as the continuing trustees of the Macetown Trust under section 52 of the Trustee Act 1956. No costs were sought, and the court did not make any order in respect of them.

Orders