Evans v Evans

[2019] NZHC 521

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000832

[2019] NZHC 521

UNDER

the Trustee Act 1956

IN THE MATTER

an application for vesting of trust property

BETWEEN

CHRISTOPHER JOHN EVANS as a trustee of the GLENCULLEN TRUST and the J S M EVANS FAMILY TRUST

Applicants

AND

JULIETTE SARAH MARGARET EVANS

Respondent

Hearing:	(On the papers)
Appearances:	D J C Russ for the Applicant
Judgment:	21 March 2019

JUDGMENT OF OSBORNE J

[1]The applicant Christopher John Evans requires the following orders:

(a)leave to bring an application as an originating application;

(b)dispensing with service in respect of Juliette Sarah Margaret Evans;

(c)dispensing with need for Mrs Evans to have a litigation guardian;

(d)removing a trustee;

(e)appointing a new trustee;

EVANS v EVANS [2019] NZHC 521 [21 March 2019]

(f)vesting of trust property under ss 52 and 59 Trustee Act 1956; and

(g)payment of applicant’s costs from the Glencullen Trust and the J S M Evans Family Trust in equal shares.

[2]        Of the orders needed, the applicant has expressly applied for those identified at [1](d) – (g) above. In this judgment I will deal with the remaining orders without the need for a further application.

[3]        The applicant is one of the existing trustees of the Glencullen Trust and the J S M Family Trust (the trusts). The Glencullen Trust was settled by Ian Ramsay Kearney on 6 July 2001. The J S M Evans Family Trust was settled by Mrs Evans on 31 May 2004. The applicant seeks in relation to both trusts the removal of the existing trustee, Mrs Evans, her replacement as trustee by her son Christopher Benjamin Charles Evans and the vesting of the property held by the trusts in the names of the resultant trustees.

[4]        The current trustees of the Glencullen Trust own a residential property at 28 Glasnevin Drive, Christchurch, Lot 121 DP 78380, Identifier CB45A/117 and 98 shares in Evans Developments Company Ltd. The current trustees of the J S M Evans Family Trust own a property at Unit 1, 82 Packe Street, Christchurch, Principal Unit 1 DP 448662, Identifier 567710.

[5]The application is supported by an affidavit from Christopher John Evans.

[6]        The evidence discloses that Mrs Evans is suffering from severe cognitive impairment following surgery, radiotherapy and chemotherapy. Attached to the applicant’s affidavit is a report from a neurologist Dr Deborah Mason made on 27 September 2018 which confirms that Mrs Evans is suffering from severe cognitive impairment and that she is not likely to improve. Rather her cognitive function is likely to deteriorate. Dr Mason states that Mrs Evans “does not have the capacity to…undertake financial decisions or legal transactions”.

[7]        The applicant seeks to have his son, Christopher Benjamin Charles Evans, appointed as a trustee of both trusts. Clause 13.1 of the Trust Deed of the Glencullen

Trust vests the power of appointment of new trustees in the applicant and Mrs Evans jointly. Clause 19(a)(i) of the Trust Deed of the J S M Evans Family Trust vests the power of appointment of new trustees in Mrs Evans. Clause 19(a)(ii) provides in the event of Mrs Evans not having full legal capacity that the power of appointment shall vest in any person appointed for that purpose by Deed by Mrs Evans, but there is no evidence that such a person was ever appointed by Mrs Evans. Thus, in the case of Mrs Evans’ incapacity, the applicant seeks the Court’s assistance in the appointment of a new trustee in respect of both trusts under s 51 of the Trustee Act because it would be inexpedient, difficult or impracticable to do so without the assistance of the Court.

[8]        Rule 7.46(3) of the High Court Rules 2016 empowers the Court to determine applications without notice if the Judge is satisfied that the application relates to a routine matter.

[9]        Rule 4.30(1) empowers the Court to order that an incapacitated person does not require a litigation guardian in a proceeding.

[10]      Under s 52 of the Trustee Act 1956 the Court has power to make vesting orders of land in certain circumstances:

Vesting orders of land

(1)Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

(a)where the court appoints or has appointed a trustee of any land or interest therein, or where a trustee of any land or interest therein has been appointed out of court under any statutory or express power:

(b)where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person—

(i)is under disability; or

…

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

(2)Where any such order is consequential on the appointment of a trustee, the land or interest therein shall be vested for such estate as the court may direct in the persons who on the appointment are the trustees.

(3)Where any such order relates to a trustee entitled or formerly entitled jointly with another person, and that trustee is under disability or out of the jurisdiction of the court or cannot be found, or (being a corporation) has ceased to carry on business or is in liquidation or has been dissolved, the land, interest, or right shall be vested in the other person who remains entitled, either alone or with any other person that the court may appoint.

[11]      Under s 59(1) of the Trustee Act, the Court has power to make an order vesting the right to transfer or call for a transfer of stock.1

[12]      On the basis of the evidence before the Court I am satisfied it is appropriate to make the orders sought. Mrs Evans is under a disability and is unable to conduct the affairs of the Trust. There is no purpose in serving her with the application. The interests of justice support the making of the orders sought.

[13]There will accordingly be orders, that:

(a)the application be dealt with as an originating application;

(b)service of the application be dispensed with;

(c)Mrs Evans does not require a litigation guardian;

(d)Mrs Evans is removed as a trustee of the Glencullen Trust and of the J S M Evans Family Trust;

(e)Christopher Benjamin Charles Evans is appointed as a trustee of the Glencullen Trust and the J S M Evans Family Trust;

(f)the property of the Glencullen Trust at 28 Glasnevin Drive, Christchurch, Lot 121 DP 78380, Identifier CB45A/117 is vested in the applicant and Christopher Benjamin Charles Evans; and the property of

1      Section 2(1) of the Trustee Act defines “stock” as including shares.

the J S M Evans Family Trust at Unit 1, 82 Packe Street, Christchurch, Principal Unit 1 DP 448662, Identifier 567710 is vested in the applicant and Christopher Benjamin Charles Evans under s 52 Trustee Act;

(g)Christopher John Evans and Christopher Benjamin Charles Evans have the right to call for a transfer of the 98 shares in Evans Development Company Ltd in the names of Christopher John Evans and Juliette Sarah Margaret Evans under s 59 Trustee Act; and

(h)costs and disbursements of the applicant (on a solicitor/client basis) be paid by the Glencullen Trust and the J S M Evans Family Trust in equal shares to the applicant.

Osborne J

Solicitors:

Fletchers Vautier Moore, Nelson