Craw v Craw

[2019] NZHC 1392

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2019-454-31

[2019] NZHC 1392

IN THE MATTER OF

the M J Craw Family Trust established by Deed dated 8 February 1978

AND IN THE MATTER OF

Section 52 of the Trustee Act 1956

BETWEEN

REA DAPHYNNE CRAW LYNDON JOHN CRAW AND

BRENDA LYNN CRAW AS TRUSTEES OF THE M J CRAW FAMILY TRUST

Plaintiffs

AND

GRAHAM JOHN CRAW

Defendant

CIV-2019-454-32

IN THE MATTER OF

the R D Craw Family Trust established by Deed dated 16 July 1980

AND IN THE MATTER OF

Section 52 of the Trustee Act 1956

BETWEEN

REA DAPHYNNE CRAW LYNDON JOHN CRAW AND

BRENDA LYNN CRAW AS TRUSTEES OF THE R D CRAW FAMILY TRUST

Plaintiffs

AND

GRAHAM JOHN CRAW

Defendant

Hearing:	on the papers
Counsel:	D H Williamson for the Plaintiffs
Judgment:	18 June 2019

CRAW v CRAW [2019] NZHC 1392 [18 June 2019]

JUDGMENT OF CULL J

[1]    These proceedings involve two mirror trusts, in which the husband, Mervyn Josiah Craw (Mervyn), now deceased, and wife, Rea Daphynne Craw (Rea), were separately trustees of each of the trusts. The beneficiaries of each trust were the spouse of each of Mervyn and Rea and their children. The defendant was formerly a trustee of both trusts.

[2]    The trustees of the R D Craw Family Trust and the M J Craw Family Trust respectively have filed without notice applications for leave to commence proceedings by original application for mortgage instruments in respect of each of the properties held by the Trusts to be vested in the trustees respectively as mortgagees. The current trustees of both Trusts are the plaintiffs in these proceedings.

[3]    In the case of the M J Craw Family Trust, the Trust was formed by Deed dated 8 February 1978. In respect of the R D Craw Family Trust, the Trust was formed by Deed dated 16 July 1980.

[4]    On 14 January 2019, the defendant was assessed as being mentally incapable of managing his affairs in relation to property by a medical practitioner, and an enduring power of attorney in relation to his property was invoked.

[5]    In the medical certificates respectively attached to the affidavits of Rea, the medical practitioner undertook a mental health assessment of the defendant and certified that the defendant was mentally incapable because he was not wholly competent to manage his own affairs in relation to his property. The reasons given by the medical practitioner were his poor memory, poor insight, loss of retrospective and prospective memory, language loss, and severe dementia.

[6]    Following the mental health assessment of the defendant, the defendant resigned as a trustee by way of Deed dated 12 April 2019. Subsequently, on 19 April 2019, Mervyn Craw died.

[7]    The defendant, however, remains registered as one of the mortgagees over land held by the M J Craw Family Trust, contained in WN40C/659 and WNE2/1079. Similarly, the defendant remains registered as one of the mortgagees over land held by the R D Craw Family Trust, contained in WN40C/660 and WN40C/658. Under s 52 of the Trustee Act 1956 (the Act), the plaintiff trustees in both proceedings seek vesting orders of the mortgages in the plaintiffs to reflect that they are the continuing trustees of the Trusts.

[8]    I am satisfied that the defendant, the former trustee of both the M J Craw Family Trust and the R D Craw Family Trust, is under disability in accordance with s 52(1)(b)(i) of the Act, and the vesting orders sought by each of the respective plaintiffs should be granted. The orders sought for directions as to the originating procedure and the non-requirement for notice in each proceeding is also granted.

[9]Accordingly, the following orders are made:

(a)In respect of the M J Craw Family Trust:

(i)The mortgage instrument B499272.2 described in WN40C/659, together with WNE2/1079, is to be vested in the plaintiffs, Rea Daphynne Craw, Lyndon John Craw, and Brenda Lynn Craw, jointly, as mortgagees.

(b)In respect of the R D Craw Family Trust:

(i)The mortgage instrument B499272.4 described in WN40C/660 together with WN40C/658, is to be vested in the plaintiffs, Rea Daphynne Craw, Lyndon John Craw, and Brenda Lynn Craw, jointly, as mortgagees.

Cull J

Solicitors:

Wadham Partners, Palmerston North for the Plaintiffs in both proceedings