Eggers v Eggers - [2019] NZHC 2732

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-583

[2019] NZHC 2732

UNDER the Trustee Act 1956

IN THE MATTER

of an application pursuant to s 52 of the Act

BETWEEN

DAVID DONALD EGGERS, WAYNE ERIC AUSTIN, KATE LOUISE HOGG, ELIZABETH SARAH SUDFELDT, MATTHEW DAVID EGGERS

Applicants

AND

ROSEMARY EGGERS

Respondent

Hearing: On the papers

Counsel:

G F Kelly and K H Lawrence for the Applicants

Judgment:

25 October 2019

JUDGMENT OF DOOGUE J

[1] This judgment relates to an application filed without notice on 10 October 2019 for:

(a)leave to commence this proceeding by way of originating application;

(b)dispensing with service on the respondent, Rosemary Eggers;

(c)dispensing with service on the discretionary beneficiaries of the DR- KEM Eggers Family Trust; and

DAVID DONALD EGGERS AND ORS v ROSEMARY EGGERS [2019] NZHC 2732 [25 October 2019]

(d)proceeding without appointment of a litigation guardian for Rosemary Eggers.

[2]The applicants also seek orders:

(a)vesting trust property in them under s 52 of the Trustee Act 1956 (the Act); and

(b)removing the powers under the trust deed given to the named protectors from those named protectors, and transferring them to the trustees from time to time of the DR-KEM Eggers Family Trust.

Background

[3] A trust known as the DR-KEM Eggers Family Trust (the Trust) was established by deed on 1 March 2004. David Donald Eggers and Wayne Eric Austin, two of the applicants in this proceeding, were appointed as trustees of the Trust along with Rosemary Eggers.

[4] Rosemary Eggers sadly suffers from dementia and was declared by her medical practitioner to lack the competence to act as a trustee of the Trust or to make decisions about property or financial matters.

[5] Thus, Rosemary Eggers is no longer able to understand factors and circumstances on which any decision might be made, or the consequences of any decisions she might make. It is evident she will not recover from this disability.

[6] Section 43(1) of the Act provides that where a trustee is unfit to act in that capacity or is incapable of so acting:

...the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustees for the time being, or the personal representatives of the last surviving or continuing trustee, may by deed appoint a person or persons (whether or not being the person or persons exercising the power) to be a trustee or trustees in the place of the first-mentioned trustee.

[7] A deed dated 7 October 2019 has been signed pursuant to s 43 of the Act appointing Kate Louise Hogg, Elizabeth Sarah Sudfeldt and Matthew David Eggers (the children of David Donald Eggers and Rosemary Eggers) to be trustees of the Trust and to act with the continuing trustees, David Donald Eggers and Wayne Eric Austin. This was effected…

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 Eggers v Eggers

Details

AGLC: Eggers v Eggers [2019] NZHC 2732
Case: [2019] NZHC 2732
Decision Date: 25 October 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the applicants, David Donald Eggers, Wayne Eric Austin, Kate Louise Hogg, Elizabeth Sarah Sudfeldt, and Matthew David Eggers, filed an application without notice against Rosemary Eggers. The applicants sought orders vesting trust property in them under s 52 of the Trustee Act 1956 and removing the powers given to the named protectors under the trust deed and transferring them to the trustees of the DR-KEM Eggers Family Trust. Rosemary Eggers, who suffered from dementia, was declared by her medical practitioner to lack the competence to act as a trustee of the Trust or to make decisions about property or financial matters. The applicants sought leave to commence the proceeding by way of originating application, dispensing with service on Rosemary Eggers and other parties, and proceeding without the appointment of a litigation guardian for Rosemary Eggers.
The legal issues in this case were whether the Court had jurisdiction to make a vesting order under s 52 of the Trustee Act 1956 and whether the powers of the protectors should be removed and transferred to the trustees of the Trust. The Court found that it had jurisdiction to make a vesting order under s 52(1)(a) and (b)(i) of the Act. The Court also found that it was in the best interest of the Trust to remove the powers of the protectors and vest those powers in the trustees of the Trust.
The Court granted the applicants' requests for leave to commence the proceeding by way of originating application, dispensing with service on Rosemary Eggers and other parties, and proceeding without the appointment of a litigation guardian for Rosemary Eggers. The Court also made a vesting order under s 52 of the Act, removing Rosemary Eggers' name from the title of the property at 4 Halswater Drive, Churton Park, Wellington, and vesting the title in the joint names of the applicants. The Court further removed the powers given to the named protectors under the terms of the Trust deed and transferred those powers to the trustees of the Trust. The Court made no order as to costs.

Orders