Draper-Kidd

[2017] NZHC 2497

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA TE ROTORUA-NUI-Ā-KAHU ROHE

CIV-2017-463-000088 [2017] NZHC 2497

IN THE MATTER OF

an application pursuant to ss 51 and 52 of

the Trustee Act 1956 for appionting a new trustee and vesting of landin trustee

REBECCA MARGARET DRAPER- KIDD

Applicant

Hearing:	(On the papers)
Counsel:	Louise Foley for the Applicant
Judgment:	12 October 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 12 October 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

Re:  DRAPER-KIDD [2017] NZHC 2497 [12 October 2017]

[1]      The applicant, Rebecca Draper-Kidd (“Rebecca”), seeks the following orders:

(a)       leave to commence proceedings by way of an originating application under r 19.5 of the High Court Rules; and

(b)      vesting the land listed in the application in Margaret Alison Kidd

(“Margaret”) and Rebecca as trustees of the Kidd Trust (“the Trust”).

[2]      I am satisfied that leave should be given to commence the proceedings by way of originating application and accordingly I make orders to that effect in terms of r

19.5 of the High Court Rules.

[3]      The substantive application seeks an order in terms of s 52(1)(b)(i) of the Trustee Act 1956 vesting all the land currently in the name of Howard Albert Thomas Kidd (“Howard”) and Margaret in Margaret and Rebecca as trustees of the Trust.

[4]      The background is set out below.

[5]      Margaret and Rebecca are trustees of the Trust.  By trust deed dated 1 July

1988  the  Trust  was  established  appointing  John  David  Leeming  Corry  and

CGR Trustee Services Limited as trustees.

[6]      By deed of retirement and appointment of trustee dated 5 October, the original trustees were replaced by Howard and Margaret.  In 2010 Howard suffered a stroke and in anticipation of Howard losing mental capacity, Howard and Margaret signed a deed of retirement of trustee and appointment of new trustee of the Trust on 17 June

2014.  On Howard’s incapacity Howard and Margaret’s daughter, Rebecca would be appointed a new trustee.

[7]      In a medical certificate dated 23 June 2017 and exhibited to the affidavit, the certifying doctor  reports  that  he  suffers from  dementia  with  moderate cognitive impairment.  The doctor observed that Howard is mentally incapable  as he lacks the capacity to make a decision about a matter relating to donor’s personal care and welfare in respect of which a decision is being made, or is proposed to be made or to foresee the consequences of any failure to make decisions.

[8]      As a result, he was removed as a trustee of the Trust and replaced by Margaret and Rebecca.

[9]      For these reasons I am satisfied that it is appropriate to make the vesting order sought under s 52(1)(b)(i) of the Trustee Act 1956 vesting the land listed below in Margaret and Rebecca as trustees of the Trust:

(a)       CT SA1076/95 (South Auckland) Registry) being Lot 2 Deposited Plan

South Auckland 650;

(b)      CT SA1080/25 (South Auckland Registry) being Lot 1 Deposited Plan

South Auckland 650;

(c)       CT 351604 (South Auckland Registry) being Unit 113 Deposited Plan

375816;

(d)      CT SA1220/6 (South Auckland Registry) being Lot 2 Deposited Plan

South Auckland 2439;

(e)       CT 2128D/574 (South Auckland Registry) being Lot 3 Deposited Plan

South Auckland 32583;

(f)       CT SA25A/1162 (South Auckland Registry) being Lot 2 Deposited

Plan 32406;

(g)      CT SA25D/1088 (South Auckland Registry) being Party Section 8

Block IV Town of Taupo;

(h)      CT SA25D/1110 (South Auckland Registry) being Part Section 6 Block

IV Township of Taupo; and

(i)       CT NA1626/72 (North Auckland Registry) being Part Lot 6 Deposited

Plan 15821.

[10]     Leave is reserved to seek such further or other orders as may be necessary to

give effect to the judgment.

Moore J

Solicitors:

Le Pine & Co, Taupo