Enright v Lelsz

[2021] NZHC 167

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000054

[2021] NZHC 167

BETWEEN

LANCELOT PATRICK ENRIGHT

Plaintiff

AND

HENRI ANTHONY LELSZ

Defendant

Hearing:

1 February 2021

Appearances:

A W Belcher for Plaintiff

No appearance for Defendant

Judgment:

15 February 2021

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 15 February 2021 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

ENRIGHT v LELSZ [2021] NZHC 167

[1]    The plaintiff, Lancelot Patrick Enright, and his wife, Antonia Anna Maria Enright, now deceased, were the registered owners of an estate in fee simple as joint tenants of land situated at 2073 Beaumont Highway, RD 1, Lawrence, Otago, having the legal description Lot 1 – 2 Deposited Plan 23978 and being all land comprised and described in Record of Title OT16A/608 (the land). The plaintiff has two stepchildren, being Antonia’s children from a former marriage. They are Michelle Marie Gaudelius and Henri Anthony Lelsz (the defendant).

[2]    At some point in 2004 Lancelot and Antonia agreed to transfer title of the land to themselves and the defendant as trustees of a trust. The trust was established on the basis, inter alia, that the defendant would have a trust deed drawn up and also settle other land he owned upon the parties as trustees of the trust. It was agreed that Lancelot, Antonia, the defendant and Michelle would constitute the primary beneficiaries of the trust.

[3]    The land was transferred by Lancelot and Antonia to themselves and the defendant as joint tenants on 25 September 2009. Lancelot says he and Antonia completed the transfer in accordance with the trust arrangements.

[4]Antonia died on or about 27 September 2019.

[5]    As far as Lancelot is now aware, no trust deed was ever entered into. Lancelot now seeks orders:

(a)under s 51 of the Trustee Act 1956 removing the defendant as a trustee of the 2004 trust, and appointing Lancelot and a solicitors’ trustee company as new trustees of the 2004 trust in substitution of the defendant;

(b)vesting the land in Lancelot and the solicitors’ trustee company; or, in the alternative;

(c)a declaration that the defendant holds the land as bare trustee upon a resulting trust for the plaintiff; and

(d)an order transferring the defendant’s title in the land to the plaintiff.

Procedural Context

[6]    The defendant lodged for filing on 18 September 2020 a statement of defence, but the filing fee on that has been neither paid nor waived. In these circumstances, pursuant to rule 5.1(b)(ii) of the High Court Rules, the document in question has not been filed.

[7]    On 7 December 2020 Osborne J set the matter down for a formal proof hearing and directed Lancelot to file and serve by 12 January 2021 the affidavit evidence on which he sought to rely.

[8]    On 1 February counsel for the defendant filed a memorandum, acknowledging he did not discharge his responsibility in attempting to file the statement of defence out of time. Mr Peters’ submission was that there is an arguable case and that it would not be just for the defence not to be heard. He submitted the matter would be best resolved by a settlement conference. No application for leave to file out of time has been made. However, an affidavit sworn by the defendant accompanied the memorandum. Although the affidavit does not form part of the record, I am aware of its existence and its contents. Significantly, the defendant acknowledges Lancelot and Antonia’s intentions and that a trust deed was executed. No copy was produced.

[9]    Mr Peters did not appear at the hearing. Not surprisingly Mr Belcher submitted that this was a delaying tactic, and a concerning one given Lancelot’s age (early 90s).

[10]   In these very unsatisfactory circumstances, I now attempt to do justice between the parties. In doing so I consider the balance between them is that Lancelot cannot expect to achieve an outcome wherein the property is vested in him exclusively, as that would be unfair to the defendant. Secondly, in making the acknowledgements that he does in the affidavit that is on the file, yet not properly produced, the defendant cannot expect the court to delay or defer a declaration as to the bare trust which both parties acknowledge was in existence.

[11]   Other than agreement as to who were the beneficiaries of the bare trust, all other matters remain contested.

[12]Sadly, neither party is able to locate a copy of the trust deed.

Discussion

[13]   I am satisfied on the basis of the evidence before me that a trust exists, consisting of the following terms:

(a)the trustees were Antonia, Lancelot and the defendant;

(b)the beneficiaries were Lancelot, Antonia, Michelle and the defendant;

(c)the land was transferred to the trustees.

[14]   Given the absence of documentation being produced by either party and given the unsatisfactory nature of the evidence, the only order that I can safely make is a declaration that the land is held in trust for the benefit of Lancelot, Michelle and the defendant.

[15]   This is an interim decision. It is clear from the defendant’s affidavit that he believes there is a trust deed in existence. That being so, I am not prepared to go further at this stage given this is an equitable jurisdiction. I am also of the view the matter needs to be appropriately determined by this Court. To enable the matter to proceed appropriately I grant leave to the defendant to file a statement of defence within five working days of service of this judgment.

[16]   Had the appropriate action in relation to the filing of a statement of defence been taken by the defendant this hearing would not have been necessary. Lancelot has been put to unnecessary action and attendant costs. It is appropriate that he be recompensed with solicitor/client costs for the conduct of this hearing. If these costs cannot be agreed I will deal with this issue by considering memoranda (of no more than five pages) to be filed within 20 working days of the date of this interim judgment.

Orders

[17]   I make a declaration that the land is held in trust by Lancelot and the defendant for the benefit of Lancelot, Michelle and the defendant.

[18]The following timetable shall apply:

(a)The proceedings shall be served on Michelle by Tuesday, 2 March 2021.

(b)Discovery of documents is to be completed by Tuesday, 16 March 2021.

(c)A case management conference shall be set down before me at the expiration of the preceding timetabling directions.

Doogue J

Solicitors:

Sumpter Moore, Balclutha Alpers & Co, Christchurch