Dransfield v Dransfield - [2018] NZHC 1072

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-000065

[2018] NZHC 1072

UNDER the Trustee Act 1956

IN THE MATTER OF

Vesting orders (s 52)

BETWEEN

KEITH DRANSFIELD

Applicant

AND

JANET DRANSFIELD

Respondent

Hearing: 16 May 2018

Appearances:

S F Saud for the Applicant

No appearance for the Respondent

Judgment:

16 May 2018

Reissued:

17 May 2018

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 16 May 2018 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors:
Beattie Rickman Legal Services Limited, Hamilton

DRANSFIELD v DRANSFIELD [2018] NZHC 1072 [16 May 2018]

Introduction

[1] The parties, Keith and Janet Dransfield, were settlors and trustees of the Dransfield Family Trust (the “Trust”) established by deed dated 16 March 2005 (the “Deed”).

[2] Properties in the Hamilton suburb of Pukete and in Waihi are registered in Keith’s and Janet’s names as trustees of the Trust (the “properties”). By the present application, Keith seeks to have the properties transferred from him and Janet to him and BRL Trustees 2018 Limited (“BRL”), as respectively former and current trustees of the Trust.

Background

[3] By deed dated 13 April 2016, Janet gave Keith enduring powers of attorney – exercisable in the event of her mental incapacity – over her personal care, welfare and property (the “EPOAs”).1

[4] Janet regrettably suffers cognitive impairment secondary to dementia. A health practitioner, Dr Sheryl Larsen, certified she had assessed Janet on 15 December 2017, to ascertain her mental capacity in terms of the EPOAs. In Dr Larsen’s opinion, Janet was mentally incapable for the purposes of the EPOAs, because she was not wholly competent to manage her own affairs in relation to her property.

[5] Given Janet’s mental incapacity, by deed of 9 February 2018, Janet was removed as trustee and replaced as trustee by BRL, in terms of the Deed’s clause 13.2.

[6] On 9 April 2018, Lang J granted Keith leave to commence this originating application under s 52 of the Trustee Act 1956, for an order vesting the properties in himself and BRL as trustees of the Trust.2 Section 52(1)(sb)(i) relevantly permits such vesting orders where a trustee entitled to possession of land “is under disability”.

1 The evidence in support of the application omitted the EPOAs. At my request, to ensure they dealt with the properties, the applicant’s counsel, Ms Saud, procured copies for my inspection.
2 Leave was necessary because the application is not expressly identified as one permitted to be brought by originating application: HCR 19.2.

Section 52(3) explains, where there is joint entitlement, the land is vested in the other person who remains entitled, either alone or together with any other person the Court appoints.

[7] In response to Keith’s application to dispense with service of the proceeding,3 on 2 May 2018, Edwards J directed the application be served on any…

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 Dransfield v Dransfield

Details

AGLC: Dransfield v Dransfield [2018] NZHC 1072
Case: [2018] NZHC 1072
Decision Date: 16 May 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Keith Dransfield applied for vesting orders to transfer the properties held in the Dransfield Family Trust to him and the current trustee, BRL Trustees 2018 Limited, due to Janet Dransfield's incapacity. The properties were held in the names of Keith and Janet as trustees of the Trust, established by a deed dated 16 March 2005. Janet had granted Keith enduring powers of attorney, which became exercisable due to her mental incapacity caused by dementia. As a result, Janet was removed as trustee and replaced by BRL, in accordance with the trust deed. Keith sought the vesting orders under section 52 of the Trustee Act 1956, which allows such orders when a trustee under a disability, in this case Janet, is unable to manage her affairs.

The legal issues before the court were whether Keith had the authority to remove Janet as trustee and replace her with BRL, and whether the vesting orders were appropriate given Janet's incapacity and the lack of opposition from other beneficiaries. The court found that Keith did not have the authority to remove and replace Janet as trustee, but this did not affect the vesting orders as Janet's incapacity provided the basis for the orders. The court also determined that since Kathryn, the sole beneficiary, supported the vesting orders, there was no need to serve other potential beneficiaries.

The court granted the vesting orders, transferring the properties to Keith and BRL as trustees of the Trust. The court noted that while the trust deed's definition of 'Final Beneficiaries' could be interpreted to exclude Kathryn, her support for the application made this issue moot. The court also corrected an error in the original judgment, clarifying that Keith could not have exercised his powers under the EPOA to remove and replace Janet as trustee.

Orders