Foy v Foy

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

CaseChat Overview and Summary

The applicants in this case, Michael Bernard Foy and Heritage Trust Company as Trustees of the Foy Family Home Trust, sought to remove Josephine Marie Foy as a trustee of the Foy Family Home Trust, as well as to obtain leave to commence proceedings by way of an originating application, dispense with service of the proceedings on Josephine, and vest the Trust property in the continuing Trustees of the Trust. The respondents did not oppose the application. The dispute arose from Josephine’s deteriorating health condition, which has rendered her incapable of managing her personal care and welfare, as well as her property. The applicants sought to remove Josephine from her position as a trustee due to her incapacity.

The central legal issue before the court was whether Josephine's incapacity justified her removal as a trustee of the Foy Family Home Trust. The court had to determine whether the applicants were entitled to the orders sought under the Trustee Act 1956. The applicants argued that Josephine's incapacity to make decisions regarding her personal care, welfare, or property warranted her removal as a trustee, and that the applicants lacked the power to remove her under the Trust Deed. The court had to decide if Josephine's removal from her position as trustee was justified under the circumstances.

The court held that Josephine's incapacity justified her removal as a trustee of the Foy Family Home Trust. The affidavits and reports presented by the applicants confirmed Josephine's lack of capacity to manage her personal care and welfare, as well as her property. The court found that Josephine's condition was not expected to improve, and that her removal from her position as a trustee was in the best interest of the Trust. The court granted the applicants' application for leave to commence the proceedings by way of an originating application, as well as the application to dispense with service of the proceedings on Josephine. The court also directed that Josephine be removed as a trustee of the Foy Family Home Trust and vested the Trust property in the continuing Trustees of the Trust.

The court's final orders were that leave to commence the proceedings by way of an originating application be granted, service of the proceedings on Josephine be dispensed with, Josephine be removed as a trustee of the Foy Family Home Trust, and the Trust property be vested in the continuing Trustees of the Trust. The applicants were thus able to proceed with their application to remove Josephine as a trustee, and the Trust property was vested in the continuing Trustees of the Trust.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established