Dick v Dick
[2019] NZHC 2607
•14 October 2019
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2019-412-000090
[2019] NZHC 2607
UNDER the Trustee Act 1956 IN THE MATTER
of the Caldergate Trust
BETWEEN
WILLIAM RUSH DICK
Applicant
AND
SALLY BEST DICK
Respondent
Hearing: (Determined on the papers) Appearances:
J G Lucas for the applicant
Judgment:
14 October 2019
JUDGMENT OF ASSOCIATE JUDGE PAULSEN
This judgment delivered by me at 3.00 pm on 14 October 2019 pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors:
Lucas & Lucas Ltd, Dunedin
DICK v DICK [2019] NZHC 2607 [14 October 2019]
[1] William Rush Dick (William) and Sally Best Dick (Sally) are husband and wife. They are both retired. They have three adult sons namely, Christopher Peter Dick, William Dick McIntosh, and Anthony Francis Dick.
[2] The Caldergate Trust (the Trust) was created by a Deed of Trust dated 29 April 2003. William and Sally were the settlors and original trustees of the Trust. The primary beneficiaries are their three sons. William and Sally, along with their sons and any grandchildren, are the discretionary beneficiaries.
[3] The Trust owns a property at 28 Bedford Street, Dunedin. Until recently, William and Sally lived at the Bedford Street property, but they have recently moved and have acquired another property better suited to their needs. The Bedford Street property is to be sold, but this is held up pending the making of orders on this application.
[4] William and Sally do not enjoy good health. William is terminally ill. Sally has exhibited behaviours consistent with the onset of Alzheimer’s disease. It was mistakenly thought that in the event of William’s death Sally would be the only surviving trustee. It was considered prudent to replace both William and Sally as trustees and to seek the Court’s assistance with that.
[5]William commenced this proceeding seeking orders:
(a)For leave to bring the proceeding by way of originating application;
(b)Dispensing with service of the application on Sally;
(c)Dispensing with the appointment of a litigation guardian in respect of Sally under r 4.30 High Court Rules 2016;
(d)Removing both William and Sally as trustees of the Trust;
(e)Appointing Christopher Peter Dick and Anthony Francis Dick as new trustees by way of substitution;
(f)Appointing William Dick McIntosh as an advisory trustee; and
(g)Vesting the Trust’s Bedford Street property (OT 218/79), in the new trustees.
[6] I convened a telephone conference with counsel, Mr Lucas, on 20 September 2019. I raised with him a concern about the proposal to appoint an advisory trustee. He was to take further instructions about that. It has only then discovered that acting pursuant to cl 3.4 of the Trust Deed, on 20 September 2017 William and Sally appointed two of their three sons, Christopher Peter Dick and William Dick McIntosh, as additional trustees of the Trust.
[7] It is still considered prudent that William and Sally cease to be trustees but because of Sally’s condition there is doubt about the ability to achieve this without the Court’s assistance. There is also now a wish to appoint all three sons as trustees of the Trust.
[8]William has now sought amended orders:
(a)As in 5(a) – (d) above;
(b)For the appointment of Anthony Francis Dick as an additional trustee; and
(c)The vesting of the Bedford Street property in the continuing trustees and the additional trustee.
[9] Sally consents to her removal as a trustee and to the appointment of Anthony Francis Dick as an additional trustee. The continuing trustees consent to the appointment of Anthony Francis Dick as an additional trustee.
Discussion
[10] It is now established practice that applications of this type are commenced by way of originating application. I see no reason why that would not be appropriate here and leave is granted to do so accordingly.
[11] There is evidence that Sally suffers from a neurocognitive disorder and that this will not improve. There is a letter from a consultant psychiatrist that confirms this, but I understand that Sally continues to make decisions concerning her own well- being and affairs. She has also been seen by a lawyer, Ms Clair Elder, and obtained independent legal advice. Ms Elder met with Sally on two occasions and was aware of her condition. She has provided a letter that confirms that Sally exhibited a satisfactory level of memory function, understood the proposals concerning the Trust and consents to them. Ms Elder then witnessed Sally’s signature to a memorandum consenting to her removal as trustee.
[12] Given the evidence that, despite her condition, Sally both understands and consents to her removal as trustee I am satisfied that no order should be made under r
4.30 High Court Rules 2016 for the appointment of a litigation guardian to represent her.
[13] For the avoidance of doubt, I also dispense with service of the application upon Sally.
[14] Clearly, given the health of William and Sally it is appropriate to make orders removing them as trustees in the Court’s inherent jurisdiction.1 That will relieve William and Sally from the burden of their trusteeships while promoting the efficient administration of the Trust. It is appropriate also that Anthony Francis Dick be appointed an additional trustee so that all of the children of William and Sally are trustees together and actively participate in the Trust’s affairs.
[15] It must follow that an order should be made vesting the Bedford Street property in the names of the continuing and additional trustees.
Orders
[16]I make the following orders:
(a)I grant leave for this proceeding to be by way of originating application;
1 Powell v Powell [2015] NZCA 133 at [47].
(b)I dispense with service of the application on Sally;
(c)William and Sally are removed as trustees of the Caldergate Trust;
(d)I appoint Anthony Francis Dick to be an additional trustee of the Caldergate Trust along with the continuing trustees, William Dick McIntosh and Christopher Peter Dick;
(e)Under s 51 of the Trustee Act 1956, the Trust property at 28 Bedford Street, Dunedin (OT 218/79) is to vest in Anthony Francis Dick William Dick McIntosh and Christopher Peter Dick the trustees of the Caldergate Trust.
[2] There will be no order for costs.
O G Paulsen Associate Judge