Dunphy v Burn

[2019] NZHC 797

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV 2019-441-10

[2019] NZHC 797

UNDER

the Trustee Act 1956

IN THE MATTER OF

an application for vesting order, removal of trustees and appointment of new trustees

BETWEEN

JANICE ANN DUNPHY

Applicant

AND

JOAN MAY BURN and JEAN LETITIA DANN

Respondents

On the papers
Judgment:	11 April 2019

JUDGMENT OF MALLON J

[1]                  This application concerns the Farleigh Blackwell Trust. The applicant (Janice) is a trustee of the Trust. The other trustees are the respondents (Joan and Jean). The Trust owns an orchard and has investments with Forsyth Barr.

[2]                  The Trust was settled by Douglas Storkey on 1 August 1995. Mr Storkey is now deceased. The Trust was set up for Joan. The primary beneficiaries of the trust are Joan; Joan’s nephews or nieces (John, Gavin, Bryan and Janice); and the children of any of them. Joan did not have children. John, Gavin, Bryan and Janice all have children. Under the Trust deed the power to appoint new trustees vests in Joan.

[3]                  Joan had a distinguished career with the New Zealand Women’s Royal Army Corps and in 1970 was awarded an MBE by the Queen for her services to the Army. She is now 95 years old. She is in a rest home. A recent medical certificate confirms

DUNPHY v BURN [2019] NZHC 797 [11 April 2019]

she suffers from dementia. Jean is 90 years old. She also lives in a rest home and a recent medical certificate confirms that she too suffers from dementia.

[4]                  Janice applies for an order removing Joan and Jean as trustees and appointing Kevin Barton Osborne (Kevin) and Bryan George Dunphy in their place.1 Kevin is the solicitor for the trust. Bryan is Janice’s brother, and a primary beneficiary under the trust (as a nephew of Joan). Janice also applies for an order vesting the orchard property (which is on two certificates of title) in the names of Janice, Bryan and     Mr Osborne.2

[5]                  Kevin and Bryan consent to the orders. Joan’s other nephews, John and Gavin, consent to the orders. The children of Bryan, John, Gavin and Janice consent to the orders. In short, all the primary beneficiaries consent to the orders, as do the new trustees.

[6]                  I am satisfied it is appropriate to remove Joan and Jean as trustees and to appoint Kevin and Bryan in their place and to vest the properties in the names of Kevin, Bryan and Janice. The orders sought in the originating without notice application dated 25 March 2019 are accordingly made.

[7]                  I thank Mr O’Connor, counsel for Janice, for his helpful memorandum and supporting material.

Mallon J

1      Trustee Act 1956, s 51. The application is also under the Court’s inherent jurisdiction.

2      Section 52.