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…

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 Collins v Collins

Details

AGLC: Collins v Collins [2020] NZHC 1890
Case: [2020] NZHC 1890
Decision Date: 31 July 2020

CaseChat Overview and Summary

The case of Collins v Collins involves the Collins Family Trust, where Graham John Collins, Christopher Charles Collins, David William Collins, and Frances Awhina Dando are trustees, and Jennifer Ruth Collins is the former trustee. The applicants seek an order vesting a property at Banks Peninsula in their names under section 52 of the Trustee Act 1956. They also request procedural orders for bringing the proceeding under Part 19 of the High Court Rules 2016, dispensing with service on the respondent, and not appointing a litigation guardian for the respondent. The application is heard on the papers and determined by Associate Judge Paulsen.

The court had to decide whether the proceeding could be brought under Part 19 of the High Court Rules 2016 and if it was appropriate to dispense with service on the respondent and the appointment of a litigation guardian. The court found that the proceeding could be brought under Part 19 since there was no opposing party and detailed pleadings or interlocutory steps were not required. The court also found it appropriate to dispense with service on the respondent and the appointment of a litigation guardian since the application related to an administrative matter and did not affect the respondent's interests other than as a trustee.

Associate Judge Paulsen granted leave to bring the proceeding under Part 19 of the High Court Rules 2016 and dispensed with service on the respondent. The court also dispensed with the appointment of a litigation guardian for the respondent, as the application related to an administrative matter and did not affect the respondent's interests other than as a trustee. The court found that the respondent was validly removed as a trustee and ordered the vesting of the Banks Peninsula property in the applicants as trustees of the Collins Family Trust. No order for costs was sought or made.

In conclusion, the court granted the applicants' requests for procedural orders and allowed the vesting of the Banks Peninsula property in the applicants as trustees of the Collins Family Trust. The court found that the proceeding could be brought under Part 19 of the High Court Rules 2016 and that it was appropriate to dispense with service on the respondent and the appointment of a litigation guardian. The court's decision ensures that the trustees can deal with the trust assets in accordance with their duties.

Orders