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 permits the Court to make a vesting order where a trustee is possessed of any land or interest therein and is under a disability as defined in s 2(2).

Discussion

[8]                  I am satisfied that the matter is appropriately commenced by way of originating application. The scope of matters in issue is limited and the interests of justice do not require the applicants to proceed by way of particularised pleadings. No interlocutories are required and the application is one which should be advanced with reasonable urgency.

[9]                  On the basis of the medical evidence, I am also satisfied that service on the respondent is appropriately dispensed with, having regard to her evident incapacity, her inability to understand the nature of the proceedings and the likely distress that service may cause. I consider her interests adequately protected by her husband and Mr Willis. The relevance of an independent trustee in this context was noted by this Court in Van Boxel and Jason as trustees of the Sophie-Michael Trust v Van Boxel.3

[10]              I likewise accept that service on Mr Willis and the applicant’s two children is appropriately dispensed with. All consent to the substantive application.

3      Van Boxel and Jason as trustees of the Sophie-Michael Trust v Van Boxel [2018] NZHC 706.

[11]              In regard to the substantive application, I am again satisfied on the basis of the medical evidence that Janice is no longer able to discharge her obligations as trustee. Under s 51 of the Trustee Act 1956, the court may appoint a new trustee either in substitution for or in addition to an existing trustee. However, because no replacement trustee is sought for Janice, the s 51 jurisdiction cannot be invoked. Nevertheless, the court retains an inherent jurisdiction to remove trustees, animated by the welfare of the beneficiaries, the security of trust property and the satisfactory execution of the trusts.4 In the context of Janice’s incapacity, all such considerations are relevantly engaged.

[12]              I am similarly satisfied that the vesting orders sought by the applicant are appropriate. They flow logically from her removal as trustee, and in the case of 732D Remuera Road, will permit its early realisation and acquisition of a smaller, more appropriate property in which Janice’s ongoing home care can be maintained. The fact that the application is supported by the independent trustee and all beneficiaries demonstrates that it proceeds in a transparent and open manner within the Trust and family relationships.

[13]              I am therefore satisfied that the jurisdictional requirements of s 52(1)(b)(i) are made out and a vesting order is appropriately made.

Result

[14]I make orders:

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

(b)dispensing with service of the application on the first and second respondents and the applicant’s children;

(c)dispensing with representation of the second respondent;

4      Green v Green [2015] NZHC 1218 at [602]; Peng v Rotheschild Trust (Schweiz) AG [2017] NZHC 25 at [38].

(d)removing Janice Beryle Currie as a trustee of the Currie Family Trust; and

(e)vesting the properties at 732D Remuera Road, Remuera (being 1787 square metres more or less described in Identifier Number NA116A/439, being Lot 4 Deposited Plan 185624), and the property at 15 Middleton Road, Remuera (being 437 square metres more or less described in Identifier Number NA696/84, Deposited Plan 27460) in the continuing trustees of the Currie Family Trust, namely, Hilton Noel Currie and Robert John Willis.

[15]No order as to costs is sought.

Muir J