Dunn v Dunn

[2018] NZHC 3067

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-318

[2018] NZHC 3067

UNDER

Part 19 of the High Court Rules 2016 & Trustee Act 1956

IN THE MATTER

of an application for a Vesting Order in respect of land

BETWEEN

LESLIE ROBERT CHARLES DUNN AND REDOUBT TRUSTEES XVII LIMITED

Applicants

AND

BETTY DOLINA BEATON DUNN

Respondent

Hearing:	On the papers
Counsel:	L Fischer for the Applicants
Judgment:	23 November 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 23 November 2018 at 4.20 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Solicitors:
Edmonds Judd, Te Awamutu

DUNN v DUNN [2018] NZHC 3067 [23 November 2018]

Introduction

[1]The applicants apply for orders:

(a)granting leave to commence proceedings by way of originating application;

(b)dispensing with service on the respondent; and

(c)substantive orders vesting in them a property described as 4 Mace Crescent, Otorohanga in them.

[2]        The applicants are the Trustees of the Betty Dunn Family Trust, of which Betty Dunn (Betty) was the settlor. The original trustees were Betty, Leslie Dunn and independent trustee WFM Trustees Limited.

[3]        On 18 May 2007 WFM Trustees Limited retired as a trustee and Redoubt Trustees XVII Limited was appointed in its stead.

[4]Betty now suffers from dementia and is in full time rest home care.

[5]        I have sighted a certificate from Dr Natalie Briggs, who is a geriatric and rehabilitation registrar, confirming that she suffers from moderate vascular dementia with significantly impaired insight into issues relating to her property, and that she is properly identified as mentally incapable.

[6]        The property in Otorohanga is unable to be dealt with by the Trust while the respondent remains identified as a registered proprietor.

[7]        The trustees’ application for vesting orders proceeds under s 52(1)(b)(i) of the Trustee Act, which permits the Court to make a vesting order where a trustee is possessed of any land or interest therein and is under disability as defined in s 2(2).

Discussion

[8]        I accept that the matter is appropriately progressed by way of originating application, having regard to the limited scope of the matters in issue and the absence of any requirement for interlocutories.

[9]        I accept also that service is appropriately dispensed with on the respondent on the basis of her inability to understand the nature of the proceedings and the likely distress which service would cause.

[10]      I note consents to the application by Betty’s children, who are identified as beneficiaries of the Trust. To the extent their children are also beneficiaries, I consider their interests adequately protected by their parents.

[11]Accordingly, I regard it as appropriate to dispense with service.

[12]      In relation to the substantive orders I accept that the jurisdictional requirements of s 52(1)(b)(i) are made out and that a vesting order is appropriately made.

Result

[13]I make orders:

(a)Granting leave to commence proceedings by way of originating application.

(b)Dispensing with service of the originating application. My decision in this respect is fortified by the existence of an independent trustee.

(c)Vesting the following property in the name of Leslie Robert Charles Dunn and Redoubt Trustees XVII Limited as Trustees of the Betty Dunn Family Trust:

The land contained in Certificate of Title SA6C/1131 being Lot 12 Deposited Plan South Auckland 10664 described as 4 Mace Crescent, Otorohanga.

[14]No order as to costs is sought.

Muir J