Corrigan v Berryman
[2018] NZHC 132
•14 February 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000433
[2018] NZHC 132
BETWEEN CHRISTOPHER ANDREW CORRIGAN AND SEAN NICOLAS BERRYMAN
PlaintiffsAND
FELICITY BERRYMAN
Defendant
Hearing: 12 February 2018 Appearances:
D M Lester for Plaintiffs
Judgment:
14 February 2018
JUDGMENT OF NICHOLAS DAVIDSON J
Introduction
[1] The plaintiffs, Mr Corrigan and Mr Berryman, have brought these proceedings for themselves and as litigation guardians for their infant children.
[2] They are all beneficiaries under a Trust Deed of 9 August 2002 described as “Deed of Trust for Clearwater Property”, given the name the “Chrisean Trust” (I infer the amalgamation of Chris and Sean).
[3] By the Deed, Gwyneth Glascodine and Felicity Berryman acknowledged that they held in trust the property in the Clearwater East Stream Development, described in the Trust Deed as under Certificate of Title 48A/1211 (Canterbury Land Registry).
CORRIGAN AND ANOR v TRUSTEE [2018] NZHC 132 [14 February 2018]
[4] The “Appointers” [sic] were named as Jeffrey Were Nicolas Berryman and Gwyneth Margaret Glascodine, together with their heirs, successors and assigns.
[5] The primary beneficiaries of the Trust are the plaintiffs and their children. “Persons, charity or charities who the Appointors and Trustees may stipulate from time to time in their absolute discretion” are also named as beneficiaries. There have been no discretionary appointments.
[6] By clause 2, the Trust Deed records that “the Trustees will transfer the property to the Beneficiaries as or when the Appointers require or direct”, thus closing the class of beneficiaries on such requirement or direction.
Application before the Court
[7] The application before the Court is expressed in the statement of claim of 23 June 2017.
[8] The original Trust property at Clearwater was sold on 29 March 2004. The trustees had purchased a property at 33 Centaurus Road, Christchurch on 21 February 2003, to be held under the terms of the Trust Deed dated 9 August 2002.
[9] Mr Berryman’s affidavit of 14 June 2017 refers to his providing a personal loan to replace the SBS Bank facility in the sum of $106,500.00. The purchase of Centaurus Road had been funded by Mr Berryman and Gwyneth Margaret Glascodine contributing $7,000.00, the defendant $7,000.00, and the SBS loan. The property was purchased through Mr Morrall, solicitor, and his trust account records describe “Purchase of Centaurus Road Using Chrisean Trust”.
[10] The property has been empty since May 2015. It needs to be dealt with. Due to the refusal of the defendant to sign letters of instruction, no solicitor or real estate agent has been able to undertake the sale process.
[11] By formal notice dated 13 February 2017, the appointors called upon the defendant to transfer the Centaurus Road property to the beneficiaries. The notice was
accompanied by the necessary transfer documents. The defendant has not responded. She had also not executed the documents when they were given her in March 2016.
[12]The orders sought are:
(a)An order directing the defendant to complete all necessary documentation to facilitate the transfer of the Centaurus Road property, being CB563/8 (Canterbury Registry) to Christopher Andrew Corrigan and Sean Nicolas Berryman within 10 working days of the making of this order, (In discussions with counsel this became within 10 working days after service of this judgment and order, as this judgment directs. The relevant documents for execution by the defendant must be served again).
(b)That Christopher Andrew Corrigan and Sean Nicolas Berryman hold the interests of their respective children on their behalf.
(c)In the event the defendant fails to comply with this order, that the Registrar of the High Court at Christchurch is authorised to execute all necessary documents to achieve the transfer referred to in Order (a) on behalf of the defendant.
(d)Order as to costs.
[13] There were also applications for substituted service, appointment of litigation guardians pursuant to 4.35 High Court Rules, and for an order pursuant to r 4.36 that service on the proceedings on the represented parties be dispensed with. Orders were made in those terms.
Discussion
[14] As set out above, the proceedings were preceded by a notice issued under the Trust Deed requiring the defendant to transfer the Trust property to the beneficiaries. An affidavit of service of 29 June 2017 refers. An attempt was made to serve the proceedings at the same address where the notice was served, as recorded in
Mr van Beek’s affidavit. The report from his agent refers to a statement made to the agent from an occupant of the address where the notice of transfer was served, that the defendant had not lived there for some six months. There was no forwarding address given.
[15] Mr Jeffrey Berryman deposes that the statement that the defendant left the property which she had lived in for more than 10 years came as a surprise because the defendant’s partner is bedridden and lives at the property. Enquiries of the family indicate the advice given to the agent was false. The defendant’s niece was reported by her brother as having stayed with the defendant at the Morella Road (service) address in the second half of August 2017.
[16] His Honour Associate Judge Osborne ordered that personal service of the proceedings on the defendant be dispensed with and service be effected as follows:
i.The proceedings, together with a copy of this judgment, and together with a covering letter requesting that the person so served brings the documents to the attention of the defendant, are served on an adult occupant of the property at 38 Morella Road, Whale Beach, New South Wales 2107, Australia or (in the absence of such adult) affixed to the door of that property;
ii.The proceedings, together with a copy of this judgment, and together with a covering email note are sent to the defendant at the email address:
[17] The affidavit of Jeffery Berryman does not have the exhibits attached, but counsel, Mr Lester, confirmed that the documents that accompany the sworn affidavit are the intended exhibits.
[18] The refusal of the defendant to co-operate in the transfer of the Centaurus Road property is thus clear. There is a material need for the orders sought as the property is earthquake damaged; part of the ceiling has collapsed and there is a leaking hot water cylinder. There have been complaints about overgrowth of the garden. Ms Corrigan and Mr Berryman have had to pay for work at their own cost.
[19] The defendant in February 2016 said that she was happy for Mr Morrall, as solicitor, and Mr Costigan and Mr Findlay of Ray White to act as agents for the sale. The defendant had the documents for her signature but did not complete them.
[20] The defendant is, I am satisfied, a bare trustee under the Trust Deed and has received the notice requiring her to transfer the Centaurus Road property. There is no defence apparent to the application before the Court.
[21] While the defendant lives in Australia, the application is properly brought in this Court as the property in question is in Christchurch, New Zealand.
[22] A litigation guardian may not have an interest adverse to the incapacitated person on whose behalf they act. Here, the infants and the parents have the same interests, as equal beneficiaries under the Trust, so there is no conflict. The litigation guardians are able to fairly and competently conduct the proceeding.
[23] The substantive relief sought aims to avoid the complication of having minors as owners on a title, and I agree the plaintiffs should hold legal title for themselves and their infant children. I also agree with Mr Lester there is no purpose in the infants being served, and their interests can be properly represented by their litigation guardians.
Conclusion
[24] I am satisfied that the orders sought are appropriate. Accordingly, with adjustment to the applications referred to above, I make the following orders:
(a)An order directing the defendant to complete all necessary documentation to facilitate the transfer of the Centaurus Road property, being CB563/8 (Canterbury Registry) (the property) to Christopher Andrew Corrigan and Sean Nicolas Berryman within 10 working days of service of this judgment and order reflecting the judgment.
(b)That Christopher Andrew Corrigan and Sean Nicolas Berryman hold the interests of their respective children in the property on their behalf.
(c)In the event the defendant fails to comply with this order, the Registrar of the High Court at Christchurch is authorised to execute all necessary documents to achieve the transfer referred to in Order (a) on behalf of the defendant.
(d)Service upon the defendant will be deemed to have been effected three working days after the completion of the following two steps:
(i)This judgment and the order of the Court, with a covering letter requesting any person that serves to bring the documents to the attention of the defendant are to be served on an adult occupant of the property at 38 Morrella Road, Whale Beach, New South Wales 2107, Australia or (in the absence of such adult) affixed to the door of that property;
(ii)This judgment and a copy of the order together with a covering email note are to be sent to the defendant at the email address:
(e)Costs are reserved, but in the meantime may be recovered by the plaintiffs from the Trust property.
[25] Leave is reserved for any further application so that this judgment may be executed.
……………………………………..
Nicholas Davidson J
Solicitors:
Christopher Morrall, Christchurch
Counsel: DM Lester, Barrister, Christchurch
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