Dockrill v Dockrill

[2021] NZHC 1933

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-000203

[2021] NZHC 1933

UNDER

the Trustee Act 1956

BETWEEN

GRAHAM JOHN DOCKRILL and JOHN

BERGSENG as trustees of the PLEASANT VALLEY TRUST

Applicants

AND

PAULA KAY DOCKRILL

Respondent

Hearing:	On the papers
Counsel:	S J Jamieson and G A Ryan for Applicants A W Belcher for Respondent
Judgment:	29 July 2021

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 29 July 2021 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DOCKRILL v DOCKRILL [2021] NZHC 1933 [29 July 2021]

[1]    This is an application for an order under s 52 of the Trustee Act 1956 vesting land at 1 Elderwood Lane, Christchurch in the applicants, Graham John Dockrill  (Mr Dockrill) and John Bergseng as trustees of the Pleasant Valley Trust.

[2]    The respondent, Paula Kay Dockrill (Mrs Dockrill), was served with the application and filed a notice of her intention to appear and defend the application. She has now discontinued her opposition and consents to the order sought being made on the basis that no order as to costs is made. The application therefore proceeds on an unopposed basis.

[3]    The Pleasant Valley  Trust was established  by way of  Deed  of Trust dated   4 November 2003. Mr Dockrill is the settlor and appointor of the Trust. The original trustees were the applicants.

[4]    On 11 June 2009, Mrs Dockrill, who was then married to Mr Dockrill, was appointed as an additional trustee and as a discretionary beneficiary of the Trust.

[5]    Mr and Mrs Dockrill separated in around December 2013. Mrs Dockrill was removed as a trustee by Deed dated 11 June 2014 and subsequently removed as a discretionary beneficiary of the Trust by Deed dated 16 December 2020.

[6]    The Trust owns the property at 1 Elderwood Lane, Christchurch. Mrs Dockrill, along with the applicants, is presently one of the registered owners in her capacity as trustee of the Trust. She resides in India and did not sign transfer documents to give effect to her removal as a trustee of the Trust. As a result, the applicants considered it necessary to make this application for a vesting order.

[7]    The application is made under s 52 of the Trustee Act 1956 rather than under the Trusts Act 2019 in accordance with s 10 and sch 1 cl 11 of the Trusts Act 2019.

[8]    The Court has the power to make the order sought. Relevantly, s 52(1)(h) of the Trusts Act 1956 provides the Court may make an order vesting land or an interest therein:

where land or any interest therein is vested in a trustee whether by way of mortgage or otherwise, and it appears to the court to be expedient.

[9]    I am satisfied that Mrs Dockrill was lawfully removed as a trustee of the Trust. Mr Dockrill is the appointor under the Trust Deed. The first schedule to the Trust Deed sets out the appointor’s powers including para 2.1 which provides:

The Appointor shall also have the power to remove any Trustee without having to give any reason.

[10]   Mr Dockrill and the continuing trustees executed a Deed of Removal of Trustee dated 11 June 2014 pursuant to which Mr Dockrill exercised his power under para 2.1 of the first schedule to remove Mrs Dockrill as a trustee. Mrs Dockrill no longer challenges the exercise of that power and it appears has no interest in the Trust.

[11]    Clearly in these circumstances it is expedient that an order be made vesting the Elderwood Lane property in the continuing trustees. It is expedient so that the title reflects the correct legal ownership of the property and so that the continuing trustees can, should they wish, exercise their powers and duties in respect of the property.1

Result

[12]   There shall be an order in terms of para 1.2 of the applicants’ originating application of 20 May 2021 vesting the land in Record of Title Identifier Number 318992 (Canterbury Land Registry) being Lot 1 Deposited Plan 379527 in Graham John Dockrill and John Bergseng as trustees of the Pleasant Valley Trust.

[13]There shall be no order as to costs.

O G Paulsen Associate Judge

1      See Re Ferguson [2014] NZHC 2343.

Solicitors:

Tavendale and Partners, Christchurch Sumpter Moore, Balclutha