Daniels v Daniels - [2015] NZHC 1989

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000083 [2015] NZHC 1989

IN THE MATTER OF
an application for a vesting order pursuant

to s 52 of the Trustee Act 1956

BETWEEN

BEVERLEY ANN DANIELS AND ROY DAVID DANIELS AND ROSS & DOWLING TRUSTEES (2006) LIMITED AS TRUSTEES OF THE MERV AND BETTY DANIELS FAMILY TRUST Plaintiffs

AND

BETTY AMELIA DANIELS Defendant

Counsel: N M Laws for the Plaintiffs

Judgment:

21 August 2015

(Determined on the papers)

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to service and vesting orders

Introduction

[1] The defendant, Betty Daniels, along with her husband, George (“Merv”) Daniels, was a trustee of the Merv and Betty Daniels Family Trust (the Trust) upon its settlement by deed of trust (the Trust deed) on 1 August 1998.

[2] In July 2014, Merv Daniels passed away. By deed dated 17 October 2014, the defendant’s children, Beverley Daniels and Roy Daniels, were appointed as new trustees in place of their father. In December 2014, Betty Daniels suffered a stroke
which has left her permanently mentally incapacitated.

DANIELS v DANIELS [2015] NZHC 1989 [21 August 2015]

[3] Pursuant to s 43(1) Trustee Act 1956, Beverley and Roy Daniels (the plaintiffs), as continuing trustees of the Trust, removed Betty Daniels as an incapable trustee and replaced her with the trustee company of their solicitors, Ross & Dowling Trustees (2006) Limited. This was effected by deed dated 8 July 2015, on the basis that Betty Daniels’ medical condition rendered her unfit to act as a trustee.

[4] The Trust owns a property at Marlow Street, Dunedin (the Trust property). Currently unoccupied, the Trust property is the flat in which Betty Daniels and Merv Daniels resided before Merv’s death and Betty’s admission into residential care. The title to the Trust property is at present in the names of the plaintiffs and Betty Daniels.

The orders sought

[5] The plaintiffs seek orders under s 52(1)(a) Trustee Act to vest the Trust property in the plaintiffs, regularising the position so that all current trustees are shown as the registered proprietors. This will enable the trustees to sell the Trust property to fund Betty Daniels’ residential care. Absent a Court order, the District Land Registrar will not accept the use of the Deed of Removal and Appointment of New Trustees to facilitate the intended transfer.

[6] The plaintiffs also seek orders as to representation, service, and costs, namely, that:

(a) service on the defendant of this application and all other documents filed in the proceeding be dispensed with;

(b)the defendant does not require a litigation guardian as her representative in this proceeding;

(c) this application and the relief sought by the statement of claim be dealt with on the basis of the plaintiffs’ evidence in this application, being the affidavits of Roy Daniels, Beverley Daniels and Dr John Wood, and on the papers before the Court; and

(d)the costs of this application be met from the funds of the Trust on a solicitor-client basis.

The application to…

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 Daniels v Daniels

Details

AGLC: Daniels v Daniels [2015] NZHC 1989
Case: [2015] NZHC 1989
Decision Date: 21 August 2015

CaseChat Overview and Summary

The case of Daniels v Daniels involved Beverley Ann Daniels and Roy David Daniels, as trustees of the Merv and Betty Daniels Family Trust, seeking vesting orders for a property owned by the Trust. Betty Amelia Daniels, a former trustee who had become mentally incapacitated, was the defendant. The plaintiffs sought orders to vest the Trust property in their names to facilitate its sale for Betty Daniels' residential care needs. The Court was asked to dispense with service on Betty Daniels, determine if she required a litigation guardian, and decide on costs.

The legal issues before the Court included whether service on Betty Daniels could be dispensed with due to her incapacity, whether she required a litigation guardian, and whether the vesting orders should be granted to enable the sale of the Trust property. The Court also needed to determine how costs should be allocated.

The Court found that Betty Daniels' condition rendered her unable to meaningfully participate in the proceedings, and thus, service on her was appropriately dispensed with. The Court further determined that Betty Daniels did not require a litigation guardian as she was unlikely to understand any advice given. The Court concluded that the vesting orders were appropriate to enable the trustees to manage the Trust property according to the Trust deed. The Court ordered that the costs of the application be paid from the Trust's funds on a solicitor-client basis.

The Court made orders dispensing with service on Betty Daniels, confirming she did not require a litigation guardian, vesting the Trust property in the names of the plaintiffs and the new trustee company, and directing that all costs be paid from the Trust's funds.

Orders