Fullerton

[2017] NZHC 1310

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2017-419-151 [2017] NZHC 1310

UNDER

Part 19 of the High Court Rules 2016 and

section 52 of the Trustee Act 1956

IN THE MATTER

of an application for land held in trust to be vested in the surviving trustee

BETWEEN

DAVID KEITH FULLERTON AS TRUSTEE OF THE GP & N FULLERTON FAMILY TRUST, OF 121

COBHAM DRIVE, HAMILTON Applicant

AND

Hearing:	On the papers
Counsel:	D Delic for Applicant
Judgment:	14 June 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 14 June 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           SD Legal, Hamilton

DAVID KEITH FULLERTON        [2017] NZHC 1310 [14 June 2017]

[1]      I have before me an application for an order to commence proceeding by way of originating application.   The case concerns s 52 of the Trustee Act 1956. The applicant seeks an order vesting the title to a property held under trust in his name as the sole surviving trustee.

[2]      By way of further background, the applicant, David Keith Fullerton, is the trustee of the GP & N Fullerton Family Trust (the Trust), which was settled by Graham Putt Fullerton and his wife, Nellie Fullerton, by trust deed dated 27 August

1997.  Nellie Fullerton died on 24 February 2004.  She appointed her son, Jonathan, in her place as a trustee.  Jonathan died on 4 July 2014, without appointing anyone in his  place as trustee in  his  will.    Graham  Fullerton  appointed  the applicant,  his brother, as a co-trustee by deed of appointment dated 20 October 2015. Graham Fullerton  has  since died,  on  10  August  2016,  leaving the  applicant  as  the sole surviving trustee of the Trust.

[3]      The assets of the Trust includes a property at 121 Cobham Drive, Hamilton. The title to this property was not updated to give effect to the deed of appointment. The  applicant  has  entered  into  an  agreement  for  the  sale  and  purchase  of  the property, dated 21 December 2016, which is unconditional in all respects. Settlement was to take place on 17 February 2017.  This cannot take place because Graham and Nellie Fullerton, in their capacity as trustees of the Trust, are registered on the title.

[4]      Graham Fullerton, in his will dated 30 September 2014, also appointed the applicant as executor of his estate and trustee of the Trust.  This will is invalid as the first page was not initialled by the testator or witnesses.  An application, under s 14 of the Wills Act 2007, is to be filed and, in the meantime, a vesting order is required.

[5]      In support of the application, I have the affidavit of David Keith Fullerton, in which he confirms the matters set out above.   I have also reviewed the deed of appointment of 20 October 2015.  It is satisfactory in all respects for the purposes of appointing the applicant as a trustee.1  Death certificates of Nellie, Jonathan and

Graham Fullerton have also been produced.

1      Property Law Act 2007, s 9.

[6]      I  have  also  reviewed  the  document  purporting  to  be  the  last  will  and testament of Graham Fullerton.  It confirms that the applicant is to be executor and the trustee of his will.  It, however, also has directions to the trustee to distribute the residuary  estate  as  follows:  one  third  to  his  granddaughter,  Larissa  Mereana Fullerton, one third to Scripture Union Inc New Zealand, and one third to East/West College, Gordonton.

Assessment

[7]      I am satisfied that an order to proceed by way of originating application may be made in accordance with r 19.5 of the High Court Rules 2016.  In my view, it is not necessary in  the interests  of  justice for there to  be  the usual  particularised pleadings or interlocutory steps, such as discovery, for the proper determination of the issues.

[8]      However, in terms of the substantive proceedings, I am only prepared to grant the relief sought subject to the condition that the proceeds of sale may not be distributed, pending the proper resolution of the validation of the will, foreshadowed in the papers.  I am not satisfied on the information available to me that there are not be other parties that may be interested in the distribution of those proceeds. The property shall be vested in the applicant subject to this condition, pursuant to s 52(1) of the Trustee Act 1956.

[9]      I reserve leave to counsel to seek further assistance of the Court if that is considered necessary.   Otherwise, there shall be orders in accordance with [7]-[8] above.