Cross v Grimstone - [2019] NZHC 2296

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-219

[2019] NZHC 2296

UNDER the Trustee Act 1956 and Part 19 of the High Court Rules

IN THE MATTER

of an application for orders under s 52 of the Act

BETWEEN

LIAN MAREE CROSS, JOHN EDWARD BUTLER and O'SHEAS TRUSTEES

LIMITED as Trustees of the PN Grimstone Family Trust
Applicants

AND

ROBIN PHILOMENA ELIZABETH GRIMSTONE

Respondent

Hearing: On the papers

Counsel:

DL Harvey for applicants

Judgment:

13 September 2019

JUDGMENT OF FITZGERALD J

[As to without notice application seeking directions and originating application for vesting orders]

This judgment was delivered by me on 13 September 2019 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: O'Sheas, Hamilton

Cross v Grimstone [2019] NZHC 2296 [13 September 2019]

Introduction

[1] The applicants are the current trustees of the RPE Grimstone Trust (Trust). The respondent (Mrs Grimstone) is the settlor of the Trust. The Trust owns a half-share in a family home (Property).

[2] In more recent times, Mrs Grimstone has been diagnosed with moderately severe dementia. A Health Practitioner’s Certificate of Mental Incapacity to this effect was completed on 18 September 2018. The doctor providing the certificate is of the opinion that Mrs Grimstone will not recover from her current condition.

[3] The applicants, as the current trustees of the Trust, apply without notice for orders that:

(a)leave be granted to commence these proceedings by originating application under Part 19 of the High Court Rules;

(b)service on Mrs Grimstone is dispensed with, together with the need to appoint a litigation guardian on her behalf;

(c)service of the beneficiaries of the Trust is also dispensed with; and

(d)the substantive s 52 Trustee Act 1956 (Act) matter be dealt with on the papers.

[4] As to that last order, the applicants have also filed an originating application without notice for a vesting order, vesting a half-share in the Property in the applicants pursuant to s 52 of the Act. This will result in the Property being in the names of the current trustees, and thus able to be dealt with by them in accordance with their roles and duties as trustees.

[5] All beneficiaries of the Trust (other than Mrs Grimstone herself, and the first- named applicant) have consented to the orders being made.1

1 There is no express definition of or listing of “beneficiaries” in the Trust Deed. However, the trustees have the discretion to make distributions to the Settlor’s “husband” and “children”. Those persons may therefore appropriately be considered the (discretionary) beneficiaries of the Trust.

Factual background – more detail

[6] The original trustees of the Trust were Mrs Grimstone and her husband Paul Nelson Grimstone (Mr Grimstone) and a Mr Bruce Anthony Stewart. On 22 December 2004, O'Sheas Trustees Ltd replaced Mr Stewart as a trustee.

[7] Mr Grimstone died in June this year. A copy of his Death Certificate has been produced in evidence.

[8]…

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 Cross v Grimstone

Details

AGLC: Cross v Grimstone [2019] NZHC 2296
Case: [2019] NZHC 2296
Decision Date: 13 September 2019

CaseChat Overview and Summary

The case of Cross v Grimstone involved the current trustees of the RPE Grimstone Trust, which owns a half-share in a family home, applying for orders without notice to commence proceedings by originating application and for service on the settlor, Mrs Grimstone, and the beneficiaries of the Trust to be dispensed with. The applicants also sought a vesting order to transfer the half-share of the Property into the trustees’ names. The court was required to decide whether the orders sought were appropriate, and whether the vesting order should be granted. The court found that it was appropriate to deal with the applications on the papers and that the orders sought were appropriate. The court was satisfied that it was necessary for the Trust’s ownership of the half-share in the Property to be formally recorded in the trustees’ names. The court made orders in terms of the draft orders filed with the originating application.
The court held that it was appropriate to deal with the applications on the papers as the substantive relief sought was mechanical in nature and no other parties would appear to have any interest in the substantive proceeding. The court was satisfied that the orders sought were appropriate as service on Mrs Grimstone would serve no useful purpose and could cause unnecessary stress and concern, and consistent with other High Court authorities, the court was satisfied that no useful purpose would be served in appointing a litigation guardian to represent Mrs Grimstone in these proceedings. The court was also satisfied that the vesting order should be granted as Mrs Grimstone had been removed as trustee, given her current medical condition and the continuing trustees needed to be able to hold and deal with Trust property in order to carry out their duties.

Orders