Currie v Willis - [2019] NZHC 1044

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-00851

[2019] NZHC 1044

IN THE MATTER of the Trustee Act 1956

BETWEEN

HILTON NOEL CURRIE

Applicant

AND

ROBERT JOHN WILLIS

First Respondent

JANICE BERYLE CURRIE

Second Respondent

Hearing: On the papers

Counsel:

A Finnie for the Applicant

Judgment:

14 May 2019

JUDGMENT OF MUIR J

This judgment was delivered by me on Tuesday 14 May 2019 at 10.00 am Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
A Finnie, Barrister, Auckland.
S C Blackwell, Blackwells, Auckland.

CURRIE v WILLIS [2019] NZHC 1044 [14 May 2019]

Introduction

[1] The applicant, Hilton Noel Currie (Hilton), who is a trustee of the Currie Family Trust (the Trust), and the husband of the second respondent (Janice), applies for orders:

(a)granting leave to proceed by way of originating application;

(b)dispensing with service on the first respondent Mr Willis (his co- trustee), Janice, and on his children, James Hilton Currie (James) and William Barrett Currie (William); and

(c)substantive orders seeking that Janice be removed as a trustee1 and that two properties (at 732D Remuera Road and 15 Middleton Road, Remuera2), which are currently registered in the name of Hilton, Mr Willis and Janice, be vested in Hilton and Mr Willis as remaining trustees.

[2]Hilton, Janice, James and William are the final beneficiaries of the Trust.

[3] Each of Mr Willis (who is an independent trustee and accountant), James and William consent to the substantive orders sought.

[4] The applications are necessary because Janice is now severely incapacitated. I have reviewed the relevant medical evidence, including that of Dr Edward Wong and Dr Jane Buckley, which confirms that she has suffered marked decline in cognitive function and lacks competence to manage her own affairs in respect of property or to carry out her duties and obligations as trustee of a trust.

[5] The relevant Trust Deed is silent on the issue of the removal of an incapacitated trustee.

1 The application and counsel’s supporting memorandum sought orders removing Janice as a beneficiary. I established at a telephone conference convened for the purpose that this was a typographical error and that the application related to her status as trustee. The fact that she remains a beneficiary of the Trust is a relevant factor in support of the substantive applications.
2 The applicant’s affidavit variously refers to the address as 15 & 11 Middleton Road. The application refers to 15.

[6] 732D Remuera Road, which is the applicant’s and Janice’s family home, is now far too large for the family’s requirements. The property is currently on the market and the application is made urgently so that any sale might be settled without penalty. 15 Middleton Road is an investment property.

[7]The application proceeds:

(a)In respect of the application to remove Janice as trustee, under the Court’s inherent jurisdiction.

(b)In respect of the proposed vesting orders, under section 52(1)(b)(i) of the Trustee Act 1956, which…

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 Currie v Willis

Details

AGLC: Currie v Willis [2019] NZHC 1044
Case: [2019] NZHC 1044
Decision Date: 14 May 2019

CaseChat Overview and Summary

In Currie v Willis, the High Court of New Zealand considered an application by Hilton Noel Currie to remove his wife, Janice Beryle Currie, as a trustee of the Currie Family Trust and to vest certain properties in the names of the remaining trustees. The applicant, Hilton, and the respondent, Robert John Willis, are co-trustees of the trust. The application was necessitated by Janice's severe incapacitation, as confirmed by medical evidence. The court granted the application on the basis of the medical evidence demonstrating Janice's inability to manage her affairs and fulfil her duties as a trustee. The court found that dispensing with service on Janice and other parties was appropriate due to her incapacity and the consent of the other parties involved.

The legal issues before the court included whether the application could proceed by way of an originating application, whether service on the parties should be dispensed with, and whether the court had jurisdiction to remove Janice as a trustee and to vest the properties in question. The court held that the application was appropriately commenced by way of an originating application, given the limited scope and urgency of the matter. The court also found that service should be dispensed with for Janice due to her incapacity and for the other parties due to their consent. Regarding jurisdiction, the court exercised its inherent jurisdiction to remove Janice as a trustee and made vesting orders under section 52(1)(b)(i) of the Trustee Act 1956.

The court concluded that the application was in the best interest of the beneficiaries and the trust property, and it granted the orders sought by Hilton. The properties at 732D Remuera Road and 15 Middleton Road were vested in Hilton and Robert John Willis as the remaining trustees. The court also removed Janice as a trustee due to her incapacitation. No order as to costs was sought.

Orders