Ewins v Ewins

[2020] NZHC 2199

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1213

[2020] NZHC 2199

UNDER

The Trustee Act 1956

IN THE MATTER OF

An application to remove a trustee and make a vesting order

BETWEEN

CONSTANCE RUTH EWINS

Plaintiff

AND

MALCOLM ROBERTSON EWINS

Defendant

On the Papers:	At Auckland
Judgment:	28 August 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 28 August 2020 at 2 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

EWINS v EWINS [2020] NZHC 2199 [28 August 2020]

[1]    The applicant, Constance Ewins, a trustee of the Ewins Family Trust (“the Trust”) has applied for the following orders:

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

(b)dispensing with service of the application on the  respondent, Malcolm Robertson Ewins;

(c)to remove Mr Ewins  as  a  trustee  of  the  Trust  and  to  appoint  John Robertson Ewins and Lois Delwyn Masterton as trustees in his place; and

(d)to vest the property of the Trust in  Mrs  Ewins,  John  Ewins  and Lois Masterton as the new trustees.

[2]    The application is necessary because unfortunately Mr Ewins is suffering from significant dementia and no longer has the mental capacity to look after either his own affairs or the affairs of the Trust, including being unable to execute any documents.

[3]    Having considered the application and the affidavit of Mrs Ewins filed in support, it is clearly appropriate to make the orders sought. First, I am satisfied that it is appropriate to commence the proceedings by way of originating application. Secondly, as Mrs Ewins, John Ewins and Lois Masterton have all confirmed their support for the application and there is otherwise no purpose in serving Mr Ewins, it is appropriate to make an order dispensing with service.

[4]    Having dealt with those preliminary matters, it is clear from the evidence of Mrs Ewins the substantive orders sought should be made to ensure that the Trust can continue to function in order to look after the interests of the beneficiaries including Mr Ewins. I therefore make the following orders:

(a)granting leave pursuant to r 19.5 of the High Court Rules 2016 for these proceedings to be commenced by originating application;

(b)dispensing with service of the application on Mr Ewins;

(c)removing Malcolm Robertson Ewins as a trustee of the Trust;

(d)appointing John Robertson Ewins and Lois Delwyn Masterton as trustees of the Trust; and

(e)vesting the assets of the Trust, including the property at 940 Beach Road, Waiake, Auckland, being all that land comprised and described in Certificate of Title identifier 151052 (North Auckland Registry) and bank accounts in the names of the Constance Ruth Ewins and Malcolm Robertson Ewins as trustees of the Trust, to be vested in the names  of  Constance  Ruth  Ewins,  John Robertson Ewins   and   Lois Delwyn Masterton as the trustees of the Trust, to be held in accordance with the Deed of Trust dated 10 July 1998.

Powell J