Fletcher v Fletcher - [2019] NZHC 511

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-17

[2019] NZHC 511

UNDER the Trustee Act 1956 and the High Court’s Inherent Jurisdiction

BETWEEN

MURIEL MARJORIE FLETCHER

Applicant

AND

ROBERT ERNEST FLETCHER

Respondent

On the papers

Appearances:

S Gyenge for Applicant

Judgment:

5 April 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 5 April 2019 at 5.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

FLETCHER v FLETCHER [2019] NZHC 511 [8 April 2019]

Introduction

[1] Muriel Marjorie Fletcher (“Muriel”), her husband Robert Ernest Fletcher (“Robert”) and D Arnold Trustee Limited (“DATL”) are the trustees of the Murrob Family Trust (“the Trust”), established by a deed of trust dated 27 September 2002. In that capacity, they are the registered proprietors of a residential property at 14 Pirika Place, Papamoa near Tauranga; that is, the land contained in Record of Title Identifier SA68D/583 South Auckland, being Lot 32 on Deposited Plan South Auckland 87031 (“the Land”).

[2] In a report dated 17 September 2018, Dr Diane Hanfelt-Goade, a registered medical practitioner, says that Robert suffers from a progressive advanced dementia due to multiple cerebral infarcts and vascular dementia. He is also suffering from brain haemorrhages resulting from strokes and falls. Robert is said by Dr Hanfelt- Goade to be no longer oriented to person, place or time. He is unable to give his full name or date of birth; lacks insight; has very poor short-term memory; does not remember conversations and cannot process new information. Dr Hanfelt-Goade’s opinion is that Robert is mentally incapable in that he lacks the capacity to make a decision about his personal care and safety, his day-to-day living requirements and his health-care.

[3] Muriel seek orders removing Robert as a trustee of the Trust and vesting the Land in DATL and her as the remaining trustees.

Application for leave to commence the proceeding by originating application and directions as to service

[4] This is not the type of proceeding that can be commenced by way of originating application as of right pursuant to rr 19.2 to 19.4 of the High Court Rules 2016. However, the Court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application. Such permission may be sought without notice.1 Muriel seeks leave to bring this proceeding as an originating application under Part 19 of the High Court Rules 2016, and she has asked that the application be determined on the papers without service on Robert or any other person.

1 High Court Rules 2016, r 19.5.

[5]The final beneficiaries of the Trust are Muriel’s and Robert’s sons:

(a)Wayne Robert Fletcher (“Wayne”);

(b)Jeffrey David Fletcher (Jeffrey”); and

(c)Gavin Colin Fletcher (“Gavin”).

[6]The discretionary beneficiaries of the Trust are:

(a)Muriel and Robert;

(b)the final beneficiaries; and

(c)any child or grandchild of the final beneficiaries.

[7] Wayne, Jeffrey and Gavin consent to the making of the orders…

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 Fletcher v Fletcher

Details

AGLC: Fletcher v Fletcher [2019] NZHC 511
Case: [2019] NZHC 511
Decision Date: 5 April 2019

CaseChat Overview and Summary

Muriel Marjorie Fletcher sought to remove Robert Ernest Fletcher from his position as a trustee of the Murrob Family Trust and to vest the title of a residential property in herself and D Arnold Trustee Limited, as the remaining trustees. Robert, diagnosed with advanced dementia and lacking capacity to manage his personal affairs, was unable to consent to his removal. The matter was heard in the High Court of New Zealand, Tauranga Registry, under the Trustee Act 1956 and the inherent jurisdiction of the court. The central legal issues involved whether the court could remove a trustee without substituting a new one and whether it could vest property in the remaining trustees.

The court found that while the Trustee Act provided for the removal of a trustee under specific conditions, it did not apply in this instance since the remaining trustees were capable and the trust deed did not mandate more than two trustees. However, the court held that it could exercise its inherent jurisdiction to remove a trustee when necessary to ensure the proper execution of a trust. The court also determined that it could vest the property in the remaining trustees to prevent any dispute regarding the ownership of the property by the Land Registry. Given Robert's incapacity, the court concluded that removing him as a trustee was expedient and necessary.

The court granted the application, allowing Muriel to commence the proceeding as an originating application without service on Robert. It ordered Robert's removal as a trustee and the vesting of the property in Muriel and D Arnold Trustee Limited. The decision ensured that the trust could continue to be administered effectively and that the remaining trustees could manage the property without legal impediments.

Orders