Cotterill v Cotterill - [2019] NZHC 560

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…

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 Cotterill v Cotterill

Details

AGLC: Cotterill v Cotterill [2019] NZHC 560
Case: [2019] NZHC 560
Decision Date: 25 March 2019

CaseChat Overview and Summary

Colleen Annette Cotterill and Holland Beckett Trustee No 10 Limited, as trustees of the D C & C A Cotterill Family Trust, applied to the High Court of New Zealand for a vesting order to remove Donald Cecil Cotterill from the trust due to his advanced dementia and inability to manage his affairs. The applicants sought to vest the title of residential properties in Tauranga in the remaining trustees, as Donald's condition rendered him unable to fulfill his duties as a registered proprietor. The application was made under the Trustee Act 1956, which allows for the vesting of property in trustees when a trustee is under a disability.

The legal issues before the court were whether the court had jurisdiction to permit the proceeding to be brought as an originating application and whether Donald's advanced dementia constituted a disability under the Trustee Act, thereby allowing the vesting of the properties in the remaining trustees. The court considered the evidence provided, including a psychiatric report confirming Donald's condition, and the consent of the other beneficiaries to the vesting order.

Toogood J held that the proceeding could be brought as an originating application without notice, as there were no disputed questions of fact and no opposing party. The court found that Donald's advanced dementia constituted a disability under the Trustee Act, and it was in the interests of justice to vest the properties in the remaining trustees to facilitate the management and transfer of the titles. The court granted the vesting order, allowing the properties to be held by the remaining trustees of the D C & C A Cotterill Family Trust.

The court's final order was that the proceeding could be commenced by originating application under Part 19 of the High Court Rules 2016, and service of the proceeding was dispensed with. The properties at 52A and 52B 13th Avenue, Tauranga, were vested in Colleen Annette Cotterill and Holland Beckett Trustee No 10 Limited as trustees of the D C & C A Cotterill Family Trust.

Orders