Craig v Craig

[2019] NZHC 414

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-108

[2019] NZHC 414

IN THE MATTER

of the M E CRAIG FAMILY TRUST

UNDER

the Trustee Act 1956

BETWEEN

JOHN MATTHEW CRAIG, HAMISH PAUL CRAIG and STUART JAMES McNAB CRAIG

Applicants

AND

MARY EILEEN CRAIG

Respondent

Hearing:	(Determined on the Papers)
Counsel:	W A L Todd for Applicants
Judgment:	12 March 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

[1]                 This application concerns the M E Craig Family Trust. The respondent, Mary Eileen Craig is the sole trustee of the Trust. Mary is not a beneficiary of the Trust.

[2]                 The applicants who are beneficiaries of the Trust, are the sons of Mary and her late husband, Bruce Craig.

[3]                 In this application, an order is sought removing Mary as trustee of the Trust on the ground that she has dementia. There is a somewhat dated medical certificate dated 19 December 2016 confirming that Mary’s ability to make decisions involving her care, welfare and property is significantly impaired. Two of the applicants, Stuart

CRAIG v CRAIG [2019] NZHC 414 [12 March 2019].

Craig and Hamish Craig, confirm in their affidavits that Mary remains incapacitated. Ideally, that evidence would have come from Mary’s medical practitioner, but I accept the evidence. I agree the orders can be made subject to one condition set out at the conclusion of this judgment.

Procedural issues

[4]                 An application such as this with an incapacitated trustee presents a number of procedural issues. The applicants have understandably tried to short circuit those and it is appropriate that the application be dealt with efficiently, but I do note the following:

(i)Mary would ordinarily have to be represented by a litigation guardian. Given she is not a beneficiary and given the condition that will have to be met before the order can be sealed, I dispense with the requirement under r 4.30 for Mary to be represented by a litigation guardian. Nothing would be gained from such an appointment.

(ii)The applicants informally seek an order that no other party be served. All beneficiaries have signed a letter of consent, both in relation to the substantive orders sought and the procedural order that no person need to be served. The consent document dated February 2019 is the only place where it is confirmed that the signatories are the only surviving adult beneficiaries of the Trust, but in the context of the affidavits as  a whole, the implication is that there are no minor beneficiaries and the consents appended to the affidavits represent the consents of all adult beneficiaries.

[5]                 Normally a certificate under r 7.23 would be required where a matter is sought to be dealt with without service, and such will be a condition of this application. As McGechan  on Procedure records, certification is more than a  mere technicality.1      A certificate is particularly important where counsel have (understandably) sought to minimise the costs of the application through bringing applications informally.

1      McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [HR 7.23.01].

[6]Accordingly, the following orders are made:

(i)Service of this application on the respondent is not required, nor is service on any other interested party given their written consent.

(ii)A litigation guardian need not be appointed for the respondent.

(iii)Mary Eileen Craig is to be replaced as trustee with Hamish Paul Craig, Stuart James McNab Craig and John Matthew Craig as trustees of the M E Craig Family Trust pursuant to s 51 of the Trustee Act 1956.

(iv)The property contained in Certificate of Title CB316/247 (Canterbury Registry) be vested in Hamish Paul Craig, Stuart James McNab Craig and John Matthew Craig as trustees of the M E Craig Family Trust pursuant to s 52 of the Trustee Act 1956.

(v)This order is to lie in Court and not be sealed until the applicants’ solicitor has provided a certificate in the form required by r 7.23 which refers to form G 32.

Associate Judge Lester

Solicitors:
Rhodes & Co., Christchurch