Dick v Dick - [2019] NZHC 2607

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…

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 Dick v Dick

Details

AGLC: Dick v Dick [2019] NZHC 2607
Case: [2019] NZHC 2607
Decision Date: 14 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, William Rush Dick applied for orders to remove himself and his wife Sally Best Dick as trustees of the Caldergate Trust, and to appoint their three sons as trustees. The Trust owns a property at 28 Bedford Street, Dunedin, which is to be sold but the sale is held up pending the outcome of the application. William and Sally do not enjoy good health and 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.

The court had to determine whether it was appropriate to grant leave for the proceeding to be brought by way of originating application, and whether it should dispense with service of the application on Sally, and appoint a litigation guardian in respect of Sally. The court also had to consider whether it should remove William and Sally as trustees of the Trust, and whether it should appoint their three sons as trustees, including one as an advisory trustee. The court had to consider the health of William and Sally and whether it was appropriate to make orders removing them as trustees in the Court’s inherent jurisdiction.

The court granted leave for the proceeding to be brought by way of originating application, and dispensed with service of the application on Sally. The court found that Sally understood and consented to her removal as trustee and there was no need for a litigation guardian. The court removed William and Sally as trustees of the Trust, and appointed their three sons as trustees, including one as an advisory trustee. The court found it appropriate to make orders removing William and Sally as trustees in the Court’s inherent jurisdiction, to relieve them from the burden of their trusteeships while promoting the efficient administration of the Trust. The court also found it appropriate that all of the children of William and Sally be trustees together and actively participate in the Trust’s affairs. The court ordered that the Trust property at 28 Bedford Street, Dunedin be vested in the names of the continuing and additional trustees. There will be no order for costs.

Orders