Dolinina

[2017] NZHC 276

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-100 [2017] NZHC 276

IN THE MATTER OF	The Trustee Act 1956
ANASTASIA DOLININA Applicant

Hearing:	27 February 2017
Appearances:	Penelope Stevenson for the Applicant
Judgment:	1 March 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 1 March 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Solicitors:           Loughlin McGuire, Auckland

Counsel:            P Stevenson, Auckland

Re Dolinina [2017] NZHC 276 [1 March 2017]

[1]      The applicant, Anastasia Dolinina, applies for an order that the three-tenths share of the property at 4 Steam Hauler Track, Waitakere (the property), be vested in her name.

[2]      At present the share in question is held in the name of Sergyei Kaverzine. The background as to how Mr Kaverzine acquired that interest and the basis upon which Ms Dolinina seeks to have the property vested in her name follows.

[3]      Ms Dolinina is the stepdaughter of Robert James Davis who married her mother, Svetlana Dolinina, in October 2001 shortly after Svetlana and Anastasia arrived in New Zealand from their home in Russia.   At that time Anastasia was

13 years old.   She and her mother arrived in New Zealand just months before the marriage.

[4]      Mr Davis was the registered proprietor of the property.  In order to transfer funds from the sale of their apartment in Russia, the Russian authorities required proof that Anastasia had an interest in property in New Zealand.   For that reason, following legal advice, Mr Davis transferred 30 per cent of the value of the property into a Trust for Anastasia’s benefit.

[5]      At that time Sergyei Kaverzine was a family acquaintance.  Svetlana worked for him at his plant nursery.  He is Russian and was well-known in the local Russian community.  He agreed to be appointed as a Trustee for Anastasia’s benefit and to co-own the property with her stepfather.  It was always the intention that he would be a trustee only and would have no legal or beneficial interest in the property.

[6]      To record this interest, a Deed of Trust was prepared, signed by Svetlana because,  at  that  time,  Anastasia  was  still  a  minor.    Mr  Kaverzine  signed  the document as Trustee.

[7]      A gifting programme was then put in place to forgive the debt owed by the

Trust.

[8]      For several years after the Trust was first settled, Mr Kaverzine undertook some administrative actions of a formal nature, such as signing Deeds of Reduction of Debt.  However, since 2005, the family has lost contact with him and it is believed that he now resides with his family in Queensland, Australia.

[9]      Numerous and extensive attempts have been made to contact Mr Kaverzine without success.   The family now wish to sell the property but without access to Mr Kaverzine are unable to do so.  It is for that reason they now apply to the Court for the orders described above.

[10]     The question of whether an order for substituted service should be made has been raised.   I am satisfied on the evidence that such a course would not only be unnecessary but would involve further undesirable costs and delays.   My reasons follow.

[11]     Since 2005, the family has lost all contact with Mr Kaverzine.  Inquiries have been  made  within  the  Russian  community.     These  inquiries  all  suggest  that Mr Kavernine and his family are no longer in the jurisdiction and are believed to be in Queensland.

[12]     It would appear that others are interested in Mr Kaverzine’s whereabouts. For example, on more than one occasion over the last two to three years, private detectives have arrived at the property looking for Mr Kaverzine.  It appears that the private detectives went to the address because Mr Kaverzine’s name is on the title. At each visit the private detectives were told that the family had not had any direct contact with Mr Kaverzine since 2005.   The private detectives took the family’s contact details and undertook to advise them if they learned of Mr Kaverzine’s whereabouts.  No such advice has been received.

[13]     Further attempts by the family have been made to contact Mr Kaverzine through Russian friends in Queensland.  Emails were sent to those friends explaining that Mr Kaverzine’s cooperation was needed in order to have him sign the transfer of the three-tenths share of the property to Anastasia.  No responses have been received despite successive attempts to make contact.

[14]     Mr Davis and Svetlana have also advertised on Russian websites in Australia seeking advice and information about Mr Kaverzine’s whereabouts.  None of these attempts has borne fruit and the clear inference is that Mr Kaverzine, and those connected to him, do not want to be involved and are not prepared to disclose Mr Kaverzine’s present whereabouts.

[15]     It thus follows I am satisfied that no good purpose would be served in making an order for substituted service.

[16]     Furthermore, I am satisfied on the evidence before me that it is proper to make the orders sought without further delay.

[17]     In the circumstances, I grant the application and direct that the three-tenths share of the property situated at 4 Steam Hauler Track, Waitakere (CT NA49A/1191) held in the name of Sergyei Kaverzine (the trustee) as registered proprietor pursuant to a deed creating nominee trust in respect of land dated 1 July 2002 vest in the name

of the applicant.

Moore J