Foy v Foy

[2018] NZHC 941

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-786 [2018] NZHC 941

BETWEEN

MICHAEL BERNARD FOY and

HERITAGE TRUST COMPANY as Trustees of the Foy Family Home Trust

Applicants

AND

JOSEPHINE MARIE FOY

Respondent

Hearing:	On papers
Judgment:	4 May 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on

04.05.18 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Denham Bramwell, Manukau City

FOY and ANOR v FOY [2018] NZHC 941 [4 May 2018]

[1]                 Michael Foy and Heritage Trustee Company Limited as Trustees of the Foy Family Home Trust have made application for the following orders:

(a)Seeking leave to commence the proceedings by way of originating application.

(b)Dispensing with service of this proceeding on Mrs Foy.

(c)Directing Mrs Foy is removed as a trustee of the Foy Family Home Trust; and

(d)Vesting the Trust property in the continuing Trustees of the Trust namely Michael Bernard Foy and Heritage Trustee Company Limited.

[2]                 Having considered the application carefully, and in particular reviewing the affidavits of Mr Foy and Kim Barclay filed in support of the application, the grounds are self-evident. The Foy Family Home Trust was established to hold Mr and Mrs Foy’s house at Orewa. Since 2012 Mrs Foy has moved into long-term care in a private hospital suffering from dementia and a range of other conditions. The affidavit of  Ms Barclay in particular, the manager of the private hospital where Mrs Foy resides annexed reports from Matthew Sewell (on behalf of Mental Health Services for Older Adults at the Waitemata DHB) and from the general practitioner attending on the private hospital, which confirm that Mrs Foy “does not have capacity to make her own decisions regarding her personal care and welfare or property”. Mrs Foy’s condition is not expected to improve.

[3]                 Given this position it is appropriate for Mrs Foy to be removed as a Trustee. The applicants do not have this power under the Trust Deed for the Foy Family Home Trust and, as a result, the present application has been made, requiring the orders pursuant to s 52(1)(b)(i) and 66 of the Trustee Act 1956.

[4]                 Taking these matters together I am satisfied that the application should be granted. Orders are to come in terms of paragraph 1(a) and (b) of the Interlocutory

Application dated 26 April 2018, and paragraph 1(a) and (b) of the Originating Application for a Vesting Order dated 26 April 2018.

Powell J