Cotterill v Cotterill
[2019] NZHC 560
•25 March 2019
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CIV-2019-470-18
[2019] NZHC 560
UNDER the Trustee Act 1956 IN THE MATTER
of an application for a Vesting Order
BETWEEN
COLLEEN ANNETTE COTTERILL and HOLLAND BECKETT TRUSTEE NO. 10 LIMITED
Applicant
AND
DONALD CECIL COTTERILL
Respondent
On the papers Appearances:
CL Goodspeed for Applicant
Judgment:
25 March 2019
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 25 March 2019 at 4.00 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
COTTERILL and COTTERILL [2019] NZHC 560 [25 March 2019]
Introduction
[1] Colleen Annette Cotterill (“Colleen”) and her husband Donald Cecil Cotterill (“Donald”) were the settlors and trustees of the D C & C A Cotterill Family Trust (“the Trust”), established by deed of trust dated 1 April 2002.
[2] Donald is aged 86. Dr Wael Mohamed, a psychiatrist, said in a report dated 15 October 2018 that Donald suffers from moderately advanced dementia associated with psychotic features, “sun downing” and aggressive behaviour. Colleen’s evidence indicates that Donald’s condition has deteriorated since that report and he is now in full-time residential care in the Dementia Unit at Bob Owens Retirement Village in Tauranga.
[3] Acting under the Clause 12 of the deed of trust, Colleen removed Donald as a trustee of the Trust by deed dated 14 November 2018. Colleen and Holland Beckett Trustee No 10 Limited (“HBT 10”) are the remaining trustees of the Trust.
[4] In their capacities as trustees, Colleen, Donald and HBT 10 are the registered proprietors of residential properties in Tauranga, namely:
(a)the property at 52A 13th Avenue, Tauranga 3112 being all the land contained in CFR Identifier 367842 South Auckland, and being Lot 1 on Deposited Plan 391668; and
(b)the property at 52B 13th Avenue, Tauranga 3112 being all the land contained in CFR Identifier 367843 South Auckland, and being Lot 2 on Deposited Plan 391668
(together, “the Land”).
[5]Colleen and HBT 10 seek orders vesting the Land in the remaining trustees.
Application for leave to commence the proceeding by originating application and directions as to service
[6] This is not the type of proceeding that can be commenced by way of originating application as of right pursuant to rr 19.2 to 19.4 of the High Court Rules 2016. However, the Court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application. Such permission may be sought without notice.1 The plaintiffs seek leave to bring this proceeding as an originating application under Part 19 of the High Court Rules 2016, and they have asked that the application be determined on the papers without service on any person.
[7] Colleen and Donald are the preferred beneficiaries of the Trust. The final beneficiaries of the Trust are their children, Glenn Charles Cotterill (“Glenn”) and Donald Bruce Cotterill (“Bruce”).
[8] The discretionary beneficiaries of the Trust are the children of the children of the preferred beneficiaries; namely:
(a)Samuel Charles Cotterill;
(b)Renee Maree Cotterill;
(c)Suzanne Rose Cotterill; and
(d) Fraser George Cotterill, (together, “the grandchildren”).
[9] Glenn, Bruce and the grandchildren consent to the making of the orders sought and do not require service. There is no point in serving the proceeding on Donald. Moreover, because the proceeding does not involve any disputed questions of fact and there is no opposing party, it is not necessary in the interests of justice for there to be a particularised pleading or to follow the usual interlocutory steps involved in a civil proceeding.
1 High Court Rules 2016, r 19.5.
[10] I am satisfied, therefore, that it is appropriate that this proceeding proceed by way of originating application and that service of the proceeding be dispensed with.2
Vesting of property
[11] Section 52(1)(b)(i) of the Trustee Act permits the vesting of land or interest therein in any such person or any such manner as the Court may direct, where a trustee entitled to or possessed of land, either solely or jointly with another person, is under a disability. Section 2(2) of the Act provides that “a person shall be deemed to be under a disability while he [or she] is not of … full mental capacity”.
[12] Since the removal of Donald as a trustee, an order vesting the Land in the remaining trustees is expedient, because the Registrar-General of Lands will not recognise their ownership of the Land, to Donald’s exclusion, without it.
Findings and orders
[13]I am satisfied on the affidavit evidence filed that:
(a)Donald is no longer of full mental capacity and is unable to fulfil his duties as registered proprietor or to facilitate the transfer of the title in the Land to the remaining trustees.
(b)The Land should be vested in the remaining trustees under s 52 of the Trustee Act.
[14]Accordingly, I order:
(a)The proceeding may be commenced by originating application under Part 19 of the High Court Rules 2016 and service of the proceeding on any person shall be dispensed with.
(b)Under s 52(1)(h) of the Trustee Act 1956:
2 See McKean v McKean [2017] NZHC 2212, (2017) 4 NZTR 27-019 at [10]; Re Hetrick [2017]
NZHC 472, (2017) 4 NZTR 27-006 at [5] and [6].
(i)the property at 52A 13th Avenue, Tauranga 3112 being all the land contained in CFR Identifier 367842 South Auckland, and being Lot 1 on Deposited Plan 391668; and
(ii)the property at 52B 13th Avenue, Tauranga 3112 being all the land contained in CFR Identifier 367843 South Auckland, and being Lot 2 on Deposited Plan 391668
shall be vested in Colleen Annette Cotterill and Holland Beckett Trustee No 10 Limited to be held as trustees of the D C & C A Cotterill Family Trust.
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Toogood J
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