Estate of Kett

[2015] NZHC 2071

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2015-454-92 [2015] NZHC 2071

IN THE MATTER

of the Trustee Act 1956

AND

IN THE MATTER

of an application by the estate of

James Thomas Kett for a vesting order pursuant to s 52 of the Act

Hearing:	On Papers
Counsel:	R Kennedy for Plaintiff
Judgment:	28 August 2015

JUDGMENT OF BROWN J

[1]      This is an application for a vesting order under s 52 of the Trustee Act 1956. In a memorandum dated 27 August 2015 Mr Kennedy requested that urgency be given to consideration of the application because there is an unconditional agreement dated 19 August 2015 for the sale of the property, the subject of the application, which is due for settlement on 4 September 2015.

[2]      An application has been filed for permission to commence the proceeding by originating application upon the grounds that there is no defendant in the proceeding, the proceeding involves a matter of urgency and it is in the interests of justice to permit the proceeding to be commenced by originating application.   I grant permission  under  HCR 19.5  for  the  proceeding  to  be  brought  by  originating

application.

ESTATE OF JAMES THOMAS KETT [2015] NZHC 2071 [28 August 2015]

[3]      The property at 3 Jubilee Court, Palmerston North (“the property”) is owned as to one half share by Desiree Mary Kett and as to the other half share by the trustees  of  the  James  Thomas  Kett  Estate,  namely  Desiree  Mary  Kett,  David Jonathan Kett and James Kett.  The property is the subject of an agreement for sale and purchase which as earlier noted has a date of settlement of 4 September 2015.

[4]      Unfortunately  Desiree Mary Kett  is  incapable  of  executing  the  necessary documentation in connection with the sale of the property.   Her present mental incapacity  is  evidenced  by  a  statement  from  her  doctor  dated  27 August 2015 annexed to the affidavit of David Jonathan Kett.

[5]      Although   Desiree   Kett   executed   an   enduring   power   of   attorney   on

9 April 2015, the power of attorney relates only to her personal property affairs and does not extend to her role as trustee.  Consequently, in order to effect the transfer of the property an order is sought vesting in David Jonathan Kett and James Kett the one half share of the property presently registered in the names of all three trustees of the James Thomas Kett Estate.

[6]      Having considered the originating application dated 27 August 2015 and the affidavit of David Jonathan Kett also dated 27 August 2015 and the annexures

thereto, I am satisfied that it is appropriate to make an order under s 52 of the Trustee

Act 1956.

[7]      Accordingly an order is made in terms of the draft vesting order submitted by counsel.

Brown J

Solicitors:

Cooper Rapley Lawyers, Palmerston North