Cormack v Cormack

[2020] NZHC 1422

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2020-441-36

[2020] NZHC 1422

BETWEEN

LORNA CORMACK, JENNIFER ANN WILLIAMS AND LYN MARGARET INGRAM
Applicants

AND

DEREK CORMACK

Respondent

Hearing:	On the papers
Appearances:	M J Wenley
Judgment:	23 June 2020

JUDGMENT OF COOKE J

[1]By application dated 16 June 2020 the applicants seek the following orders:

(a)That the Court permit this proceeding to be commenced by originating application.

(b)Dispensing with service.

(c)Removing Derek Cormack of Napier, Retired and Lorna Cormack as Trustees of the D & L Cormack Family Trust (the Trust).

(d)Appointing Heather Cormack of Napier, Nurse as a trustee of the Trust.

(e)Vesting the property at 24A Kotuku Place, Taradale, Napier being: firstly, an estate in fee simple as to a half share in 688m2 more or less being Lot 28 Deposited Plan 19651; and secondly, an estate in leasehold

CORMACK v CORMACK [2020] NZHC 1422 [23 June 2020]

pursuant to Instrument L510723.2 being the estate and interest comprised in Identifier HBM2/1324 in Jennifer Ann Williams, Lyn Margaret Ingram and Heather Cormack pursuant to s 52 of the Trustee Act 1956.

[2]        The application is supported by affidavits of Mrs Lorna Cormack and one of her daughters, Ms Heather Cormack as well as a memorandum of counsel.

[3]        Mr Derek and Mrs Lorna Cormack settled the D & L Cormack Family Trust on 4 October 2005. The principle asset of the trust is a property at 42A Kotuku Place, Taradale, Napier. The four trustees were Mr and Mrs Cormack, Ms Jennifer Williams and Ms Lyn Ingram.

[4]        Mr Derek Cormack now suffers from dementia. A certificate from Dr Michael Koch of the Taradale  Medical Centre dated 22 January 2020 has been provided.     Dr Koch indicates that Mr Cormack is mentally incapable as he suffers from dementia and diabetes and the position will deteriorate. The position is confirmed in the affidavits of Mrs Lorna Cormack and Ms Heather Cormack.

[5]        In addition in her affidavit Mrs Lorna Cormack says that she is now 82 and has reached the stage where she wishes to be discharged as a trustee and have Heather appointed in her place.

[6] I am satisfied that the orders set out at [1] above are appropriate, that the trustees should be removed and replaced under s 51, and the vesting orders should be made under s 52 of the Trustee Act 1956.

Cooke J

Solicitors:

Willis Legal, Napier