Collins v Collins

[2020] NZHC 1890

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000177

[2020] NZHC 1890

UNDER

the Trustee Act 1956

IN THE MATTER

of the Collins Family Trust

BETWEEN

GRAHAM JOHN COLLINS, CHRISTOPHER CHARLES COLLINS, DAVID WILLIAM COLLINS and

FRANCES AWHINA DANDO as trustees of the Collins Family Trust

Applicants

AND

JENNIFER RUTH COLLINS as former

trustee of the Collins Family Trust Respondent

Hearing:	Determined on the papers
Counsel:	P M Smyth for Applicants
Judgment:	31 July 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 31 July 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

COLLINS v COLLINS [2020] NZHC 1890 [31 July 2020]

The application

[1]                 The applicants are the trustees the Collins Family Trust. They are seeking an order vesting a property at Banks Peninsula in their names in reliance upon s 52 of the Trustee Act 1956. The applicants also apply on a without notice basis for orders of a procedural nature that:

(a)they be granted leave to bring this proceeding under Part 19 High Court Rules 2016;

(b)dispensing with service on the respondent and any other person;

(c)dispensing with the appointment of a litigation guardian for the respondent.

[2]                 Despite seeking orders affecting the respondent the intituling of the proceeding as filed did not name her in that capacity. I have amended the intituling to comply with the requirements of the High Court Rules 2016.

Background

[3]                 By Deed of Trust dated 15 December 1995, Eva Winifred Collins (Eva Collins) settled the Collins Family Trust appointing Jennifer Ruth Woodley (the respondent) and David William Collins (David Collins) as trustees. I understand the discretionary beneficiaries are Eva Collins, David Collins, Christopher John Collins (Christopher Collins), their issue and the children of the respondent. The final beneficiaries of the Collins Family Trust are David Collins, Graham Collins, Christopher Collins and the respondent.

[4]                 By clauses 13 and 14 of the Deed of Trust the power to remove trustees and appoint new trustees vests in Eva Collins. Eva Collins has exercised her power to remove and appoint trustees. On 19 February 1996, Graham Collins and Christopher Collins were appointed as additional trustees. Most recently, on 19 March 2020, the respondent was removed as a trustee and her daughter, Frances Awhina Dando substituted as trustee in her place. The respondent was removed as a trustee as she

suffers from Alzheimers dementia and no longer has the capacity to make decisions regarding her own personal welfare or property or decisions relating to the administration of the Collins Family Trust.

[5]                 The Collins Family Trust owns a property at Banks Peninsula and has brought this proceeding because it is necessary to deal with the property by completion of a variation of forestry rights registered against the title. This cannot be done while the respondent is registered on the title as a trustee.

Part 19 procedure

[6]                 This proceeding is not one that can be commenced by originating application as of right pursuant to rr 19.2-19.4 High Court Rules. The court may, in the interests of justice, permit any proceeding not mentioned in rr 19.2-19.4 to be commenced by way of originating application.1 It is well recognised that where there is in reality no opposing party and no need for detailed pleadings or interlocutory steps, the originating application procedure is appropriate. Permission to bring such a proceeding under Part 19 by way of originating application may be sought without notice.2 It is appropriate to grant leave to bring this proceeding by way of originating application and I so order.3

Litigation guardian and service

[7]                 I am satisfied that the respondent is an incapacitated person for the purposes of r 4.29 High Court Rules 2016. Given her status, r 4.30 requires she have a litigation guardian unless the court otherwise orders. It is appropriate that I make such an order. This application relates to an administrative matter and does not affect the respondent’s interests other than as a trustee. I am satisfied that service would serve no purpose.

1      High Court Rules 2016, r 19.5(1).

2      Rule 19.5(2).

3      Hayes v Hayes [2020] NZHC 569 and Polson McMillan Trustee Company No. 1 Ltd v Lumsden

[2020] NZHC 1095.

[8]                 For completeness, I am also satisfied that the orders sought do not change any of the beneficiaries’ rights and do not affect the obligations owed by the trustees to any of the beneficiaries. I dispense with service on them also for that reason.4

Vesting order

[9]                 I  am  satisfied  the  respondent  was  validly  removed  as  a  trustee.   Under s 52(1)(b)(i) of the Trustee Act 1956 the court has the power to vest land in the applicants in the circumstances of this case. Once the court accepts the respondent was validly removed as a trustee it must follow that the continuing trustees and the new trustee must be able to deal with the trust assets in accordance with their duties. There should therefore be an order made vesting the Banks Peninsula property in them. There can be no sensible opposition to such an order.5

Result

[10]I make the following orders:

(a)This proceeding may be commenced by originating application under Part 19 High Court Rules 2016.

(b)Service of the proceeding on any person is dispensed with.

(c)I dispense with the appointment of a litigation guardian in respect of the respondent.

(d)Under s 52 of the Trustee Act there shall be an order vesting the land in Certificate of Title CB41A/361 (comprising firstly 10.6030 hectares or thereabouts being Lot 8 Deposited Plan 64645 and secondly, an undivided 1/15th share in 6.1463 hectares or thereabouts being Lots 26 and 27 Deposited Plan 66238) in the applicants, Graham John Collins,

4      Wethey v Wethey [2015] NZHC 493 at [19]-[20].

5      Strang v Strang [2016] NZHC 2203 at [17] and Hobbs v Hobbs [2020] NZHC 1564 at [17].

Christopher Charles Collins, David William Collins and Frances Awhina Dando as the continuing trustees of the Collins Family Trust.

[11]No order for costs was sought or is made.

[12]             These orders are to lie in court pending filing of the sworn affidavit of James Harman.

O G Paulsen Associate Judge

Solicitors:
Smyth & Co, Christchurch