Franklin v Manning

[2016] NZHC 1288

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2016-443-000053 [2016] NZHC 1288

IN THE MATTER

of the Trustee Act 1956

BETWEEN

PAUL ROBERT FRANKLIN, GRAEME LYN MANNING AS TRUSTEES OF THE

B H AND M W MANNING FAMILY TRUST

Applicants

AND

BRUCE HOME MANNING

Hearing:	(On the papers)
Appearances:	K A McKenzie for Applicants
Dateof Minute:	15 June 2016

JUDGMENT OF DUNNINGHAM J

[1]      The applicants apply, without notice for:

(a)      leave to commence proceeding by way of originating application and dispensing with representation of the defendant and service on him or any other person; and

(b)      a vesting order pursuant to ss 52 and 57 of the Trustee Act 1956 (the

Act).

[2]      The circumstances in which the applications are made are set out in full in the originating application, the affidavit of Graeme Lyn Manning, in support of the application  for  a  vesting  order,  and  in  the  memorandum  of  counsel,  dated

3 May 2016.

B H AND M W MANNING FAMILY TRUST [2016] NZHC 1288 [15 June 2016]

[3]      In  short,  Mr  Bruce  Manning,  the  defendant,  is  now  no  longer  mentally capable to act as a trustee of the B H and M W Manning Family Trust.   As a consequence, the continuing trustees, who are the applicants in this proceeding, have exercised the power to remove Mr Bruce Manning as a trustee and have entered into a  deed  of  removal  of  trustee  for  that  purpose.    However,  the  trustees  own  a residential property at 3 Cabot Place, New Plymouth which is subject to the Land Transfer Act 1952.  Mr Bruce Manning is named as a registered proprietor and the applicants cannot transfer or sign the property because of Mr Bruce Manning’s mental incapacity. They therefore seek a vesting order under s 52 of the Act.

[4]      For the reasons set out in the without notice application, I am satisfied it is appropriate to grant leave to commence the proceeding by way of originating application and I grant such leave.

[5]      In terms of the application for directions as to service, I accept the applicants’ evidence that it is appropriate to dispense with service on the defendant on the basis that service would be meaningless, given his dementia.  I also accept that the other beneficiaries of the Trust must be considered.  However, the only identified affected beneficiary is Ms Lyn Manning’s sister, Suzanne Manning and she has provided her consent to the making of the orders sought.   I therefore make an order dispensing with representation of the defendant and dispensing with the requirement to serve him or any other person.

Vesting order

[6]      Section 52 of the Land Transfer Act 1952 provides:

52 Vesting orders of land

(1)      Subject to the provisions of subsections (2) and (3) of this section, in any of the following cases, namely—

(a)       Where the Court appoints or has appointed a trustee of any land or interest therein, or where a trustee of any land or interest therein has been appointed out of Court under any statutory or express power;

…

The Court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the Court may direct, or releasing or disposing of the contingent right to such person as the Court may direct.

[7]      I am satisfied the vesting order sought by the applicants will enable the principal  asset  of  the  Trust,  being  the  residential  property  at  3  Cabot  Place, New Plymouth (certificate of title TND1/164), to be transferred into their name so that any future transfer or assignment may occur in accordance with the requirements of the Land Transfer Act 1952.

[8]      Accordingly, I make a vesting order in terms of the draft order accompanying the application filed on 1 June 2016.

Dunningham J

Solicitors:

Govett Quilliam, New Plymouth