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…

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 Dockrill v Dockrill

Details

AGLC: Dockrill v Dockrill [2021] NZHC 1933
Case: [2021] NZHC 1933
Decision Date: 29 July 2021

CaseChat Overview and Summary

In Dockrill v Dockrill, the applicants, Graham John Dockrill and John Bergseng as trustees of the Pleasant Valley Trust, sought an order vesting the property at 1 Elderwood Lane, Christchurch, in them. The respondent, Paula Kay Dockrill, who was previously a trustee of the trust, discontinued her opposition to the application. The Trust was established by a Deed of Trust on 4 November 2003, with Mr Dockrill as the settlor and appointor. Mrs Dockrill was appointed as a trustee and beneficiary in 2009, but was removed from both roles in 2014 and 2020, respectively. However, she did not sign the transfer documents to reflect her removal as a trustee, leading to the current application.

The central legal issue in this case was whether the Court could make an order vesting the property in the continuing trustees, despite Mrs Dockrill's failure to sign the transfer documents. The Court held that it had the power to make such an order under s 52(1)(h) of the Trustee Act 1956, as it appeared to be expedient to do so. The Court found that Mrs Dockrill was lawfully removed as a trustee, and there was no challenge to the exercise of the appointor's power to remove trustees without reason. The Court concluded that it was in the best interests of the Trust for the property to be vested in the continuing trustees to reflect the correct legal ownership and to allow them to exercise their powers and duties in respect of the property.

The Court ordered that the property be vested in Graham John Dockrill and John Bergseng as trustees of the Pleasant Valley Trust, in accordance with the terms of the applicants' originating application. The Court also ordered that no costs be awarded.

Orders