Cousins v Cousins

[2015] NZHC 1482

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2015-442-31 [2015] NZHC 1482

UNDER

the Trustee Act 1956

IN THE MATTER

of an application for a vesting order land in the remaining trustees of a Trust

BETWEEN

AGNES MARY COUSINS AND FVM TRUSTEES (NO 1) LIMITED AS TRUSTEES OF THE K AND

N COUSINS FAMILY TRUST Plaintiffs

AND

AGNES MARY COUSINS AND FVM TRUSTEES (NO 1) LIMITED AND KENNETH COUSINS AS FORMER TRUSTEES OF THE K AND

N COUSINS FAMILY TRUST Defendants

Hearing:	On Papers
Counsel:	B R Fraser for Plaintiffs
Judgment:	30 June 2015

JUDGMENT OF BROWN J

[1]      This is a without notice application for orders that:

(a)       the  service  of  this  application  and  all  documents  filed  in  this proceeding by the plaintiffs be dispensed with;

(b)      the application and the relief sought by the statement of claim be dealt

with on the basis of the plaintiffs’ evidence in this application being

COUSINS & OR v COUSINS & ORS [2015] NZHC 1482 [30 June 2015]

the affidavits of Agnes Mary Cousins, James Cousins and John Ayers;

and

(c)       the costs of this application be met from the funds of the Trust.

[2]      The applicants, Agnes Mary Cousins and FVM Trustees (No 1) Limited as trustees of the K and N Cousins Family Trust, seek the following orders:

1.Title to the property situated at 6A Flaxmore Place, Nelson being an estate in fee simple comprising 294 square metres more or less and being lot 2 on deposited plan 16590 and being all the land described in Certificate of Title NL10D/441 Nelson Registry subject to and together with:

·    307322.3 Fencing Covenant;

·    336238.3   Easement   Certificate,   subject   to   section 243(a) Resource Management Act 1991;

·    9258661.3 Mortgage to Westpac New Zealand Limited;

is vested in Agnes Mary Cousins and FVM Trustees (No 1) Limited and the Registrar-General of Land is directed and authorised to amend the title accordingly.

2.That the costs incurred in the course of these proceedings be paid from the assets of the K and N Cousins Family Trust.

[3]      When the Trust was established it had three trustees, Agnes Mary Cousins, Kenneth Cousins   and   Peter Robert Dallison.      By   deed   dated   4 April 2013

Mr Dallison retired as a trustee and FVM Trustees (No 1) Limited was appointed as a replacement trustee.

[4]      Earlier    this    year    Kenneth Cousins    was    diagnosed    with    dementia. Consequently Agnes Mary Cousins exercised the power under the Trust Deed to remove Kenneth Cousins as a trustee of the Trust as he lacked capacity to continue in that role.

[5]      An asset of the Trust is the property at 6A Flaxmore Place, Nelson which is currently registered in the names of Kenneth Cousins, Agnes Mary Cousins and FVM Trustees (No 1) Limited.  Subsequent to the removal of Kenneth Cousins, the remaining trustees have agreed to sell the property.

[6]      In  order  to  effect  the  sale  which  is  due  to  settle  on  15 July 2015,  the remaining  trustees  require  a  vesting  order  under  s 52  of  the  Trustee  Act 1956 transferring the title into their names only.

[7]      Having considered the affidavits of Agnes Mary Cousins, James Cousins and John Ayers and the memorandum of Mr B R Fraser, counsel for the plaintiffs in relation to directions as to service, I am satisfied that this is an appropriate case for service of the proceeding to be dispensed with and I make a direction accordingly.

[8]      I am also satisfied that the proceeding and the relief sought can be dealt with on the basis of the three affidavits and the memorandum of counsel in support of a vesting order.   The final paragraph of that memorandum states that there is no opposition to the making of the vesting order and no party is likely to be prejudiced by it.   In particular, the interest of Westpac New Zealand Limited as mortgagee remains on the title and the bank will be repaid and the mortgage discharged as part of settlement of the sale consequent on the making of the vesting order sought.

[9]      I am satisfied that under s 52 of the Trustee Act 1956 it is appropriate to make orders in the terms recorded at para [2] above.

Disposition

[10]     Service of this proceeding is dispensed with.

[11]     Orders are made in terms of the draft vesting order submitted by counsel.

Brown J

Solicitors:

Fletcher Vautier Moore, Nelson