Cunningham v Cunningham - [2016] NZHC 1075

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-000059 [2016] NZHC 1075

UNDER the Trustee Act 1956

IN THE MATTER

of an application for an Order vesting property in the trustees

BETWEEN

ROSALIE CUNNINGHAM AND OTHERS

Applicants

AND

NOEL WILLIAM CUNNINGHAM Respondent

(Determined on the papers)

Appearances:

R Richard for the Applicants

Judgment:

23 May 2016

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to vesting orders and service

Introduction

[1] The applicants, (Rosalie Cunningham, John McGrory and Joseph Anthony Dougherty), as current trustees of the Cunningham Family Trust (the Trust), seek an order vesting in them title to a property of the Trust in Dunedin (the property). They also seek orders that service of the application be dispensed with. These orders are sought because Mr Cunningham, a retired trustee of the Trust and in whose name the property is currently jointly registered, is mentally incapable of exercising his powers and duties as a trustee.

Background

CUNNINGHAM v CUNNINGHAM [2016] NZHC 1075 [23 May 2016]

[2] Mr and Mrs Cunningham married in 1962. They settled the Trust pursuant to a deed of trust dated 17 April 2000. They were, along with John McGrory, appointed as trustees of the Trust.

[3] Sadly, Mr Cunningham began showing signs of dementia and was admitted to Yvette Williams Retirement Home on 24 June 2015. Dr Frances Matthews, Mr Cunningham’s general practitioner, assessed his dementia as severe. He requires 24- hour care and help with most activities. In Dr Matthews’ opinion, Mr Cunningham is mentally unfit to carry out the duties associated with being a trustee. Ms Elizabeth Langer, a psycho-geriatrics nurse practitioner also assessed Mr Cunningham as unfit to carry out his trustee duties due to his dementia. Both Dr Matthews and Ms Langer signed certificates of incapacity saying as much.

[4] Because of Mr Cunningham’s incapacity, Mrs Cunningham and Mr McGrory signed a deed of appointment and retirement of trustees on 5 May 2016, exercising their powers under s 43 Trustee Act 1956 to retire Mr Cunningham from his position as trustee and replace him with Mrs Cunningham’s son-in-law, Joseph Anthony Dougherty.

[5] The Trust presently has only one asset, a residential property in Dunedin. Mrs Cunningham currently remains living at the property. Mr Cunningham remains as one of the registered proprietors on the certificate of title.

[6] The current trustees now wish to sell the property with the view to purchasing a more manageable property. To that end, Mrs Cunningham and Mr McGrory have entered into an agreement for sale and purchase of the property. The agreement is expressed to be “subject to the vendors making application to the High Court (at their sole cost in all respects) for the removal of Noel William Cunningham as a Trustee of the Vendor Trust”.

[7] In order for the applicants to deal with the property, they require a vesting order under s 52 Trustee Act 1956, transferring the title into their names. As Mr Cunningham has been assessed as incapable of acting as trustee, and…

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 Cunningham v Cunningham

Details

AGLC: Cunningham v Cunningham [2016] NZHC 1075
Case: [2016] NZHC 1075
Decision Date: 23 May 2016

CaseChat Overview and Summary

The applicants, Rosalie Cunningham, John McGrory and Joseph Anthony Dougherty, who are trustees of the Cunningham Family Trust, applied to the High Court for orders vesting a property in their names and for leave to serve the application without notice. The respondents were Noel William Cunningham, a retired trustee who was mentally incapable of exercising his powers as a trustee, and who was jointly registered as a proprietor of the property. The applicants sought to sell the property in order to purchase a more manageable one. The legal issues for the court to decide were whether the applicants could commence the proceeding by way of an originating application and whether service of the application should be dispensed with. The court held that the proceeding could be commenced by way of an originating application in the interests of justice and expediency. The court also held that service of the application should be dispensed with as there were no other persons who were interested in or may be adversely affected by the relief sought by the applicants. The court held that the vesting order was appropriate and made an order vesting the property in the names of the applicants. The court made no order as to costs.

Orders