Ferguson - [2014] NZHC 2343

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-002490 [2014] NZHC 2343

UNDER the Trustee Act 1956

IN THE MATTER

of an application by EDMOND BRIAN FERGUSON, JANICE CHRISTINE FERGUSON and NAIOMI CHERIE FERGUSON for a Vesting Order under section 52(1)(h) of the Trustee Act 1956

On the papers

Judgment:

25 September 2014

JUDGMENT OF ANDREWS J [Application for vesting order]

This judgment is delivered by me on 25 September 2014 at 11.30 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

FERGUSON, J & E FAMILY TRUST [2014] NZHC 2343 [25 September 2014]

[1] The applicants, Edmond Brian Ferguson (“Mr Ferguson”), Janice Christine Ferguson (“Mrs Ferguson”), and Naiomi Cherie Ferguson have applied without notice for a vesting order under s 52(1)(h) of the Trustee Act 1956, to vest the title of the property at 11 Castaing Crescent, Te Atatu South, Auckland (“the property”) in their names as trustees of the J & E Ferguson Family Trust.

[2] The J & E Ferguson Family Trust was created by a deed of trust dated

9 February 2002. The trustees named in the deed of trust were the settlors (Mr and Mrs Ferguson), their son Bryce Robert Ferguson, and their daughter Naiomi Ferguson. The property is the sole asset of the trust. The primary beneficiaries of the trust are Mr and Mrs Ferguson and the secondary beneficiaries are Bryce Ferguson and Naiomi Ferguson and their respective issue.

[3] The trust deed provides at clauses 6 and 7(a) that Mr and Mrs Ferguson have the power to remove any trustee. Pursuant to clause 6, the statutory power of appointment of new trustees is vested in them during their respective life times (and in their administrators or executors or trustees of their will after their death). Pursuant to clause 7(a), they have the power:

TO appoint at any time or times an additional trustee or trustees of all or any of the trusts whether or not occasion shall have arisen for appointment of a new trustee or trustees and to remove a trustee or trustees.

[4] For reasons which are set out in the affidavit, and need not be repeated here, the applicants agreed that it is necessary to sell the property. It was placed on the market for sale in April 2014. On 14 July 2014, they received an offer to sell the property. An agreement was eventually reached for the sale of the property at
$630,000 which is, according to Mrs Ferguson, in excess of the figure which two separate real estate agents advised would be a likely sale price. They and Naiomi Ferguson agreed to accept the offer.

[5] The sale of the property was due to have been settled on 19 September 2014. As the names of all four trustees (including Bruce Ferguson) are shown on the title of the property, an Authority and Instruction form signed by all four of them is necessary to enable the transfer of title to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ferguson

Details

AGLC: Ferguson [2014] NZHC 2343
Case: [2014] NZHC 2343
Decision Date: 25 September 2014

CaseChat Overview and Summary

The applicants, Edmond Brian Ferguson, Janice Christine Ferguson, and Naiomi Cherie Ferguson, sought a vesting order to transfer the title of property located at 11 Castaing Crescent, Te Atatu South, Auckland, into their names as trustees of the J & E Ferguson Family Trust. The property was the sole asset of the trust, with Mr and Mrs Ferguson as primary beneficiaries and their children, Bryce Robert Ferguson and Naiomi Ferguson, as secondary beneficiaries. Bryce Ferguson refused to sign the necessary documents to facilitate the sale of the property, leading to the application for a vesting order to remove him as a trustee.

The court had to determine whether the application for a vesting order could be dealt with without notice, as well as whether the vesting order should be granted. The applicants argued that requiring them to proceed with notice would cause undue delay and prejudice, as the sale of the property had already been agreed upon, and the refusal of Bryce Ferguson to sign the necessary documents was causing financial losses due to the accrual of interest for late settlement. The court found that the application met the criteria for being dealt with without notice, as it was in the interests of justice to proceed without delay and because the interests of the applicants would be prejudiced if the application was not dealt with promptly.

The court granted the vesting order, allowing the title of the property to be vested in the names of Edmond Brian Ferguson, Janice Christine Ferguson, and Naiomi Cherie Ferguson as trustees of the J & E Ferguson Family Trust. This decision enabled the applicants to proceed with the sale of the property without the hindrance of Bryce Ferguson's refusal to sign the necessary documents. The court determined that the applicants had satisfied the requirements of Rule 7.46(3) of the High Court Rules and that the vesting order was just in the circumstances.

The final order of the court was to vest the title for the property in the names of Edmond Brian Ferguson, Janice Christine Ferguson, and Naiomi Cherie Ferguson in their capacities as trustees of the J & E Ferguson Family Trust. This decision allowed the applicants to proceed with the sale of the property and mitigate the financial losses caused by the delay due to Bryce Ferguson's refusal to sign the necessary documents.

Orders