Fabish

[2017] NZHC 2850

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2017-443-86 [2017] NZHC 2850

UNDER

Parts 7 and 19 of the High Court Rules

and the Trustee Act 1956

AND

IN THE MATTER

of an application pursuant to ss 52 and 64 of the Trustee Act by PAUL WILLIAM FABISH, DENISE MAY LOVERIDGE, THOMAS RUPERT LOVERIDGE, ANDREW KELVIN MCELROY, DOROTHY MICHELLE OAKES, TANIA MAREE SIMPSON, CINDY LEE BALDWIN AND KEVIN RONALD BENNETT, Trustees of the Tariki Hall Trust

Applicants

On the papers
Counsel:	A Laurenson for Applicants
Judgment:	21 November 2017

JUDGMENT OF CLARK J

[1]      On 22 May 2017 Thomas J appointed as trustees of the Tariki Hall Trust the Committee  Members  of  the Tariki  Hall  Committee  Incorporated.1     The  original trustees were deceased; no new trustees had been appointed; the certificate of title for

the land on which the hall sits remained in the name of the original trustees and the

1      Fabish [2017] NZHC 1045.

Fabish and Ors [2017] NZHC 2850 [21 November 2017]

Committee found itself in a difficult position given the expenses required to maintain the Tariki Hall exceeded the income the Committee had managed to generate.  For those reasons the Committee had resolved that a sale of the Tariki Hall would be in its best interests.

[2]      Thomas J was satisfied from the evidence it was expedient to appoint the new trustees to the trust noting it was appropriate to appoint those who were members of the Committee as it was they who had, for a number of years, managed the Tariki Hall. In doing so they had effectively acted in accordance with the terms of the trust.

[3]      Three applications have come before me as Duty Judge:

(a)       leave to commence proceedings by way of an originating application without notice;

(b)      that property be vested in the applicants pursuant to s 52(1)(h) of the

Trustee Act 1956; and

(c)       for an order authorising, pursuant to s 64 of the Trustee Act, the sale of the property.

[4]      The applications are supported by an affidavit of Denise Loveridge, one of the

Committee  members  and  a  trustee  of  the  Tariki  Hall  Trust.     Annexed  to

Ms Loveridge’s affidavit is the trust deed vesting the land, together with buildings, in the original trustees.

[5]      Also annexed is Certificate of Title No. TN51/218 for the land and hall and minutes of a meeting on 21 August 2015 at which Committee members decided to take steps to sell the Tariki Hall.

[6]      Ms Loveridge confirmed that the Committee’s position regarding the sale of the Tariki Hall remained today as it was in August 2015.  The delay in initiating the sale was attributed to the requirement to apply to the Court to be appointed as trustees which, as I stated at the outset, was effected by the judgment of Thomas J on 22 May

2017.

[7]      After being appointed as trustees it was noted the certificate of title for the land constituting the Tariki Hall lists the proprietors of the land as the original trustees. Further, the trust deed itself does not confer power on the trustees to sell the Tariki Hall.  For those reasons, the trustees seek an order vesting the land comprising the Tariki Hall in themselves as current trustees and approval from the Court to the sale of the hall and land.

Trustee Act

[8]      Where land or any interest therein is vested in a trustee and it appears to the Court to be expedient to do so the Court may make an order vesting the land or interest in any such person in any such manner and for any such estate or interest as the Court may direct.2

[9]      I am satisfied that it is expedient that the order be made vesting the land comprising the Tariki Hall in the trustees.

[10]     I am further satisfied that it is expedient to make an order conferring upon the trustees the power to sell the land comprising the Tariki Hall.  A sale of the hall has been resolved to be in the best interests of the trust. The trustees are authorised to take all steps necessary to effect such a sale. Where in the opinion of the Court any sale is expedient in the management or administration of any property vested in a trustee the Court may confer upon the trustees such powers as I have conferred.3

[11]     It is also appropriate that the application be commenced by way of originating application without notice.  The application affects only the applicant.  There is no opposing party to the proceedings.  The originating application procedure is entirely suitable to this situation.

Result

[12]     The following orders are made:

2      Trustee Act 1956, s 52(1)(h).

3      Section 64(1).

(a)       Leave is granted to commence proceedings by way of an originating application without notice.

(b)      The land comprising the Tariki Hall (being an estate in fee simple of

355 square metres more or less, allotment 16 Section 183, Moa District, CT TN51/218 Taranaki Land District) (the property) is vested in the applicants pursuant to s 52(1)(h) of the Trustee Act.

(c)       Pursuant  to  s  64  of  the  Trustee Act,  the  sale  of  the  property  is authorised.

Karen Clark J

Solicitors:

Govett Quilliam, New Plymouth