CM Law Trustees (2010) Limited v Willcocks

[2019] NZHC 3054

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2019-412-000109

[2019] NZHC 3054

UNDER

the Trustee Act 1956

IN THE MATTER

of the Willcocks Family Trust

BETWEEN

CM LAW TRUSTEES (2010) LIMITED and DEBORAH CHARLOTTE KAYE

Plaintiffs

AND

JOYCE ELIZABETH WILLCOCKS

Defendant

Hearing:	Determined on the Papers
Counsel:	G A Clarke for Plaintiffs
Judgment:	21 November 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 21 November 2019 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:

Checketts McKay Law Ltd, Alexandra.

CM LAW TRUSTEES (2010) LTD and KAYE v WILLCOCKS [2019] NZHC 3054 [21 November 2019]

[1]    This case concerns the Willcocks Family Trust (the Trust). On 9 October 1995 Alan Bevin McKay, a Cromwell solicitor, settled the Trust. Maurice John Douglas Willcocks (Maurice), the defendant Joyce Elizabeth Willcocks (Joyce) and Iain Grant Fyfe of Wanaka, solicitor, were the original trustees. The income and capital beneficiaries of the Trust were Maurice, Joyce and the children and grandchildren of Maurice and Joyce.

[2]    Maurice died on 10 February 2010 and following his death, Mr Fyfe retired as a trustee and was replaced by the plaintiff, CM Law Trustees (2010) Ltd on 5 March 2010. More recently, by a Deed of Appointment of new Trustee dated 31 October 2019, Joyce was removed as a trustee under s 43 of the Trustee Act 1956 and replaced by the plaintiff, Deborah Charlotte Kaye (Deborah). Deborah is a daughter of Maurice and Joyce.

[3]    Joyce was removed and replaced as a trustee because she has, for some time, been suffering from several ailments including significant organic neurological impairment such that she is unaware of her financial situation and is unable to carry out the role of trustee. She has been in respite care since 1 May 2019.

[4]    The trustees hold a residential property at 46D Brandon Street, Alexandra, being Unit D and Accessory Unit D1, Deposited Plan 24730 contained in Record of Title OT16C/994. This property was purchased in March 2013 for Joyce to live in, but as she no longer has any use for the property the trustees intend to sell it. The sale cannot be made because it is registered in the names of Joyce and CM Law Trustees (2010) Ltd and Joyce lacks the mental capacity to sign the documents to enable the registration of a transfer of the property. For this reason, the trustees seek the assistance of the court for a vesting order under s 52 of the Trustee Act 1956.

[5]    As well as filing a statement of claim under Pt 18 of the High Court Rules, the trustees applied for orders:

(a)dispensing with service of the proceeding;

(b)that Joyce does not need to be represented by a litigation guardian or other representative;

(c)that notice of the proceeding be dispensed with;

(d)dispensing with service of the proceeding on any other person;

(e)that the evidence be by way of affidavit; and

(f)that the proceeding be dealt with on the papers.

[6]    There is before me an affidavit of Deborah detailing the history of the Trust, the circumstances leading to the removal of Joyce as a trustee, and the reasons for this application. Attached to her affidavit are consents signed by her siblings in support of the application.

[7]    There is also an affidavit of Dr Anna Seifert, a registered medical practitioner and practising psychiatrist who is a specialist in mental health for older people.     Dr Seifert assessed Joyce on 7 October 2019 and concluded that:

(a)Joyce lacks mental capacity to carry out the role of trustee including any decision making relating to property;

(b)Joyce is an incapacitated person as defined under the High Court Rules 2016, r 4.29;

(c)Joyce would not have the ability to understand this proceeding nor would she be able to give instructions in relation to this proceeding; and

(d)due to Joyce’s permanent mental impairment no purpose will be advanced in serving her with the proceeding and to do so is likely to cause her distress.

[8]    I am satisfied that Joyce is an incapacitated person within the meaning of r 4.29 of the High Court Rules 2016. Given the evidence before the court in relation to her mental state it is unnecessary, and would be inappropriate, to direct service on her and I dispense with service.

[9]    This is not a case where the appointment of a litigation guardian will serve any useful purpose. The relief claimed by the plaintiffs is strictly limited to the vesting

order and does not otherwise impact on the interests of Joyce. Given the extent of her incapacity a litigation guardian could not usefully obtain any information or instructions from her. Nor could he/she explain adequately the purpose of the proceeding. In these circumstances, the appointment of a litigation guardian would be an “empty charade”.1

[10]   I have considered whether I should direct service on all the beneficiaries but do not consider this is required. The orders sought are administrative in nature and simply give effect to what has already occurred. I note that consent to the application has been filed by all children of Maurice and Joyce.

[11]   It follows that it is not necessary for a Notice of Proceeding to be filed and I order accordingly pursuant to r 5.24 of the High Court Rules 2016.

[12]   I am satisfied on the evidence that Joyce was lawfully removed as a trustee and that Deborah was lawfully appointed as a trustee under s 43(1) of the Trustee Act 1956. It therefore must be appropriate that an order vesting the Trust property in the plaintiffs be made:

Result

[13]I am satisfied the application is appropriate and I make the following orders:

(a)I dispense with service of the proceeding on Joyce and any other person.

(b)I direct that a Notice of Proceeding need not be filed under r 5.24 High Court Rules.

(c)I direct that Joyce shall not be represented by a litigation guardian or other representative.

(d)The evidence in this case may be given by affidavit and determined on the papers.

1      Docherty v Docherty [2013] NZHC 1885 at [30].

(e)There shall be an order under s 52 of the Trustee Act 1956 that the jointly-held interest of Joyce Elizabeth Willcocks and CM Law Trustees (2010) Ltd in the land described as Unit D and Accessory Unit D1, Deposited Plan 24730 contained in Record of Title OT16C/994, Otago Land Registry, is vested jointly in the names of the trustees, Deborah Charlotte Kaye and CM Law Trustees (2010) Ltd.

(f)The trustees may be reimbursed their reasonable expenses of this proceeding from the assets of the Trust.

O G Paulsen Associate Judge