Ford v Ford
[2015] NZHC 3044
•3 December 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2015-419-395 [2015] NZHC 3044
BETWEEN JOHANNA CORNELIA FORD AND
GEORGE CHRISTOPHER LUONI Applicants
AND
MICHAEL JOHN FORD Respondent
Hearing: On the papers Counsel:
RP Sutton for Applicants
Judgment:
3 December 2015
JUDGMENT OF FOGARTY J
This judgment was delivered by me on 3 December 2015 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Truman Wee & Associates, Hamilton
FORD v FORD [2015] NZHC 3044 [3 December 2015]
Introduction
[1] The applicants hold interests in three properties as trustees of a family trust known as the Ford Family Trust. The three properties are currently vested at law in the names of the original trustees, Ms Ford, The Guardian Trust, and the respondent, Michael John Ford.
[2] Pursuant to a deed of retirement and appointment of trustee, The Guardian Trust retired as a trustee of the Trust and Mr Luoni was appointed to replace him. That was in November 2000. In May 2013, the respondent was diagnosed with Alzheimer’s disease. As a result, he lost his ability to exercise his powers as a trustee.
[3] Pursuant to a deed of removal of trustee, the applicants, under cl 13 of the trust deed, removed the respondent as a trustee of the Trust. That was achieved by way of an enduring power of attorney executed by the respondent in December
2000, before he lost his mental capacity. He appointed, by that deed, Ms Ford as his attorney and she exercised that power of attorney to execute the deed of removal of the respondent as trustee.
[4] The applicants, as the continuing trustees, wish to deal with the Trust assets and real property but have a problem because they are currently registered in the name of the original trustees including, particularly, the respondent. In order for the trustees to be able to deal with their interests in the three parcels of land, the parcels must first be vested in their names to satisfy the requirements of Land Information New Zealand. So the purpose of this application is that the trustees, as applicants, are seeking an order that the Trust’s interests in three parcels of land be vested in the names of themselves as continuing trustees.
[5] Affidavits by the two continuing trustees have been filed in support of this application.
[6] The first order sought is leave to bring this application, dispensing with service on the respondent. That application is granted.
[7] Then they seek the substantive order seeking a vesting order. They rely on the power to make such an order granted to the Court under s 52(1)(b)(i) of the Trustee Act 1956.
[8] I consider this to be an entirely appropriate application, necessary for the continuing responsibility of the trustee to hold these parcels of land for the benefit of the beneficiaries.
[9] Accordingly, I make the substantive order. This is particularly appropriate as one of the properties is a member of a body corporate and the body corporate has accepted a conditional offer for the purchase of the property and is unable to move forward with the sale without the express written consent of all the parties appearing on the Certificate of Title.
[10] Accordingly, an order is made under s 52 of the Trustee Act vesting the legal titles of the following properties in the applicants:
(a) 307 Sandwich Road, Hamilton (“Sandwich Road property”) being all
the land contained and described as a 1/25 share (Fee Simple) in Lot 1
DPS 23710 in Certificate of Title SA68C/939 (South Auckland
Registry); and
(b) 4 Iain Court, Hamilton being all the land contained and described as a
1/7 share (Fee Simple) in Lot 396 DPS 8848 and Lot 403 DPS 8848 in Certificate of Title SA70A/130 (South Auckland Registry); and
(c) Lease for Timeshare week 41 in Unit 12, 26 Selwyn Road, Paihia contained and described as a 1/51 share (Stratum in Freehold) in Certificate of Title NA69B/907 (North Auckland Registry).
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