Clements v Clements

[2018] NZHC 2657

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-106 [2018] NZHC 2657

UNDER

the Trustee Act 1956

BETWEEN

KEVIN ALLEN CLEMENTS Plaintiff

AND

PHYLLIS IRENE CLEMENTS as a Trsutee of the ERIC AND PHYLLIS CLEMENTS FAMILY TRUST

Defendant

On the papers
Counsel:	AG Jackson for Plaintiff
Judgment:	15 October 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 15 October 2018 at 4.00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

CLEMENTS v CLEMENTS [2018] NZHC 2657 [15 October 2018]

[1]      The Eric and Phyllis Clements Family Trust (the Trust) was settled by Phyllis Clements and her husband Eric on 18 April 2002.  The trustees of the Trust were the settlors and Ms Robertson, a financial advisor.  Ms Robertson retired as a trustee on

10 September 2014.   Eric is now deceased.   I am satisfied on the evidence of Dr Cunningham that Phyllis is under a disability and not capable of exercising her powers and duties as sole trustee.

[2]      The beneficiaries of the Trust include the settlors and their son, Kevin Allen Clements.  The final beneficiaries are the settlors’ grandchildren of which there are currently none.

[3]      Under s 51 of the Trustee Act 1956, pursuant to leave granted on 3 October

2018, Kevin has filed an originating application seeking an order replacing Phyllis as the sole surviving trustee of the Trust by professional trustees, YHPJ Trustees (2018) Limited and himself, and an order vesting the trust property in the new trustees. I am satisfied that there is no person other than Phyllis affected by the application and I have dispensed with service of the proceeding on her.

[4]      The affidavit evidence is comprehensive and persuasive and I am satisfied that, although there is a possibility that discretionary beneficiaries may be appointed in the future, there is no present need to take that prospect into account. It follows that I am prepared to make the final orders necessary to put the Trust’s affairs in order, including appointing the new trustees in Phyllis’s place and vesting the trust assets, including the property at 1274 State Highway1, RD2, Hikurangi in which Kevin and Phyllis live, in the new trustees.

[5]      Accordingly, I make the following orders in accordance with counsel’s draft:

(a)pursuant to section 51 of the Trustee Act 1956, Phyllis Irene Clements shall cease to be the Trustee of the Eric and Phyllis Clements Family Trust forthwith;

(b)      simultaneously with part (a) of the Order above, and pursuant to section

51 of the Trustee Act 1956, the Applicant and YHPJ Trustees (2018)

Limited be appointed as Trustees of the Trustee of the Eric and Phyllis

Clements Family Trust;

(c)simultaneously with parts (a) and (b) of the Order above, and pursuant to section 47 of the Trustee Act 1956, all property in the Eric and Phyllis Clements Family Trust be vested in the Applicant and YHPJ Trustees (2018) Limited as Trustees of the said Trust; and

(d)      the cost of the proceeding shall be met by the Trust.

...............................................

Toogood J