Estate of Bhula
[2021] NZHC 2098
•12 August 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-369
[2021] NZHC 2098
UNDER the Trustee Act 1956 and Part 19 of the High Court Rules 2016 BETWEEN
VAUGHAN FRANCIS RICHARDSON AND DUGALD JOHN MACLACHLAN as
trustees of the Residuary Estate of TARABEN BHULA
Applicants
On the Papers Judgment:
12 August 2021
JUDGMENT OF GWYN J
(Vesting Order)
Solicitors:
Wakefields Lawyers, Wellington
RE THE ESTATE OF BHULA [2021] NZHC 2098 [12 August 2021]
Introduction
[1] The applicants, Vaughan Richardson and Dugald MacLachlan, as trustees of the Residuary Estate of Taraben Bhula, seek an order vesting in them a property at 8 Nikau Grove, Lower Hutt (the property). This order is sought because the computer freehold register for the property is in the name of Tara Bhula as Administrator.
Background
[2] The applicants are the trustees of Taraben Bhula’s Residuary Estate. Mrs Bhula’s Residuary Estate is held on trust on the terms set out in Mrs Bhula’s will dated 25 January 2017.
[3] Mrs Bhula died on 20 October 2020. Probate of her will was granted on 24 May 2021. Pursuant to the terms of Mrs Bhula’s will, the applicants were appointed as executors of her estate and trustees of Taraben Bhula’s Residuary Estate.
[4] Mrs Bhula was the administrator of her late husband’s estate by way of Letters of Administration dated 9 April 1990. The property was registered in the name of Mrs Bhula’s late husband when it was purchased in 1967. The property is now registered in the name of Tara Bhula, as Administrator. Mrs Bhula has treated the property as her sole property since her late husband’s death, including registering a mortgage over the title on 14 April 2000 and discharging that mortgage on 13 November 2007.
Application
[5] This application for a vesting order is made pursuant to s 52(1)(a) of the Trustee Act 1956 and the inherent jurisdiction of the Court. The application is made because:
(a)The registered owner on the Computer Freehold Register for the property has not been updated since Mrs Bhula was appointed administrator of her late husband’s estate in 1990.
(b)Mrs Bhula was at all times beneficial co-owner of the property with her late husband, since 1967, and the sole beneficiary of his Estate (as the
value of the Estate was less than the prescribed amount in the Administration Act 1969) since his death in 1990.
(c)The legal files relating to the administration of Mrs Bhula’s husband’s Estate and the subsequent mortgage of the property cannot be located.
(d)The applicants, as executors, are the personal representatives of the deceased.
(e)Probate of the deceased’s Estate has been granted and all other assets realised.
(f)The Executors have entered into an agreement for sale and purchase of the property in their capacity as Executors and trustees. Settlement was scheduled for 30 July 2021.
Beneficiaries of Mrs Bhula’s Residuary Estate
[6]The Residuary beneficiaries of Mrs Bhula’s Residuary Estate are:
(a)Neela Richardson and Rajumati Bhula, who are the adult children of the deceased; and
(b)Sarisha MacLachlan, Daniel Bhula and Jasmine Bhula, who are minor grandchildren of the deceased.
[7] The applicants submit that the rights of the beneficiaries of Mrs Bhula’s Residuary Estate will not be affected by the vesting order, as it will simply allow them to deal with their respective share in the property in accordance with their duties as trustees.
Application for leave to commence proceedings as an originating application
[8] The applicants seek leave to commence this proceeding by way of originating application, pursuant to Part 19 of the High Court Rules 2016. The applicants have
sought an order that the proceedings be dealt with on the basis of counsel’s memorandum and the affidavit of Vaughan Francis Richardson, one of the applicants.
[9] An application for an order pursuant to s 52(1) of the Trustee Act 1956 is not referred to in rr 19.2, 19.3 or 19.4 as an application that can be brought pursuant to Part 19 of the High Court Rules 2016. However, r 19.5(1) enables the Court to permit any proceeding to be commenced by an originating application under Part 19 in the interests of justice. The permission may be sought without notice.1 I note that in both Re Landcorp Farming Limited and Re Body Corporate 206920, this Court has confirmed that applications under s 52 of the Act are appropriately commenced as originating applications.2 I accept that this is a case where it is appropriate to proceed by way of originating application under Part 19 as the application can properly be decided on the affidavit evidence and it is in the interests of justice for permission to be granted.3
[10] Although no application has been made for an order dispensing with service on the beneficiaries, I concluded that it is not necessary to serve the beneficiaries or appoint counsel to represent their interests. The orders do not change any of the beneficiaries’ rights. 4
The vesting order
[11] Section 52(1) of the Trustee Act 1956 permits the Court to make an order vesting land or interests therein in any such person, in any such manner, and for any such estate or interest as the Court may direct.
Result
[12]I make the following orders:
1 High Court Rules 2016, r 19.5(2).
2 Re Landcorp Farming Limited HC Wellington CIV-2009-485-2012, 18 December 2009, Mallon J; Re Body Corporate 206920 [2015] NZHC 320.
3 Re Mead [2019] NZHC 497.
4 Jones v Jones [2019] NZHC 3402 at [8]; and Smith v Walsh [2019] NZHC 3476 at [12].
(a)An Order granting permission, pursuant to r 19.5 of the High Court Rules, to commence the originating application pursuant to Part 19 of the High Court Rules;
(b)An Order dispensing with service on any other party;
(c)An Order pursuant to s 52(1)(a) of the Trustee Act 1956 vesting the land situated at 8 Nikau Grove, Lower Hutt, (WN110/292), as described in the application, currently in the name of Tara Bhula as Administrator, in the names of Vaughan Francis Richardson and Dugald John MacLachlan, as trustees of the Residuary Estate of Taraben Bhula.
Gwyn J
0
3
0