Fynn v Fynn

[2014] NZHC 2210

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-000347 [2014] NZHC 2210

UNDER

Part 19 of the High Court Rules and the

Trustee Act 1956

IN THE MATTER OF

an application for a vesting order in respect of land

BETWEEN

BARRY JOHN FYNN, BRUCE ELLETT PAGE and

REDOUBT TRUSTEES XIV LIMITED Applicants

AND

AILEEN ELSIE FYNN Respondent

Hearing:

11 September 2014

[On the Papers]

Counsel:

C W Grenfell for the Applicants

Judgment:

11 September 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 11 September 2014 at 4.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Edmonds Judd, Te Awamutu

FYNN and ORS v FYNN [2014] NZHC 2210 [11 September 2014]

[1]      The  applicants,  Barry  John  Fynn  (Mr  Fynn)  and  Bruce  Ellett  Page,  are trustees of a testamentary trust (“the trust”) of the estate of John Fynn (“the estate”) pursuant  to  a  will  dated  1  May  1984  (“the  will”).     The  other  applicant, Redoubt Trustees XIV Limited, is a professional trustee company that was appointed as a trustee of the trust by a deed dated 14 August 2014 (“the deed”).

[2]      The respondent is the wife of the deceased, John Fynn.  She was one of the trustees named in the will.  She was removed as a trustee of the trust pursuant to the deed.

[3]      In relation to this proceeding, the Court already has made the following orders: (a) granting the applicants leave without notice to bring this proceeding under Part 19 of the High Court Rules (“the application”); and (b) granting an order dispensing with service of the application on the respondent.

[4]      The  respondent  is  over  90  years  old  and  she  is  now  affected  by  senile dementia of the Alzheimer’s type.  From on or about 15 August 2013, she has been residing at the Hilda Ross retirement home where she receives specialist care.

[5]      The    applicants    have    provided    the    Court    with    an    affidavit    of Dr Julian O’Sullivan,  which  sets  out  in  full  the  diagnosis  of  dementia  of  an Alzheimer’s type, the symptoms from which the respondent suffers, and her lack of capacity to: (a) instruct a professional such as a lawyer or an accountant; (b) to understand advice given to make prudent investment decisions such as the sale or purchase of real estate; and (c) to give consideration to the needs of the beneficiaries of the trust.  Dr O’Sullivan is of the view that the respondent could be at high risk of being the subject of undue influence,  as she is  physically capable of signing a document, but she does not have the capacity to fully understand the meaning of the documents.

[6]      Dr O’Sullivan deposes that the symptoms of the respondent are such that he does not believe she would be able to instruct a lawyer to act for her in legal proceedings;  nor  does  he  believe  that  she  would  be  able  to  participate  in  the

for her if she is asked to participate.

[7]      Dr O’Sullivan is a registered medical practitioner.   He has attended to the respondent since August 2013.  Attached to his affidavit is a medical report from Sarah Fonseka, a geriatrician employed at Waikato Hospital, dated 14 May 2013. Dr Fonseka’s  report  also  records  a  diagnosis  of  the  respondent  having  senile dementia of the Alzheimer’s type.

[8]      Mr Fynn, who is the respondent’s son, and Mr Page also provided evidence

relevant to the respondent’s capacity to perform her duties as a trustee of the trust.

[9]      The  evidence  before  the  Court  was  sufficient  to  satisfy  me  that  it  was appropriate to grant leave to the applicants to bring this proceeding, and to dispense with service of the application on the respondent.

[10]   The application seeks orders that will have the effect of removing the respondent’s name from the certificate of title to a block of land and replacing her name with  that  of Redoubt Trustees  XIV  Limited.   At  present,  the respondent, Mr Fynn and Mr Page are registered legal owners of a 17/20 share in land contained in certificate of title SA622/12 being Subdivision 2 of Allotment 1 of Lot 1 of Section 1 Block IV Maungatautari Survey (“the land”); being land held on trust for the estate.  The respondent is the registered owner of the remaining 3/20 share in the land.

[11]     The applicants have entered into an agreement for the sale and purchase of the land.  Their evidence on this topic satisfies me that it is appropriate that the land be sold.

[12]     However,  due  to  the  requirements  of  LINZ,  until  the  respondent’s  legal interest in the 17/20 share of the land is vested in Redoubt Trustees XIV Limited, the sale will not be able to settle.  To enable the sale of the land to be completed, a Court order  vesting  the  respondent’s  legal  interest  in  the  17/20  share  of  the  land  in Redoubt Trustees XIV Limited is required.  Such an order will ensure that all current

and so enable them to perform all requisite steps to have the land transferred to the purchaser/s.

[13]     There  is  no  such  difficulty  regarding  the  3/20  share  of  the  land  that  is registered in the name of the respondent.   On 2 October 2006, she executed an enduring power of attorney, which LINZ will recognise in relation to the share of the land that is held in her own name.  So her attorneys can perform the relevant legal steps on her behalf to enable the sale of the 3/20 share of the land to settle.

[14]     In Kohn v Kohn [2014] NZHC 1154, Heath J was faced with the same type of circumstances. The Judge decided that once service of the application on the respondent in that proceeding was dispensed with, there was no basis on which the substantive order should be refused. Accordingly, he granted the order on the papers.

[15]     The applicants have requested me to adopt the same approach as Heath J in Kohn.  Like Heath J in Kohn, I am of the view that as I have granted the applicants leave to bring the application and dispensed with service of the application on the respondent, there is no reason to require the applicants to go to a formal proof hearing.  The evidence that I relied upon to make the orders that I have already made is also sufficient to satisfy me that I should also make the substantive order that the applicants seek.  Accordingly, I make an order vesting the 17/20 share of the land in the applicants.  The order is made on the basis that the applicants will hold this share in the land as trustees for the estate.

Result

[16]     Order made under s 52(1)(b)(i) of the Trustee Act 1956 vesting the 17/20 share in the land contained in certificate of title SA622/12 being Subdivision 2 of Allotment   1   of   Lot   1   of   Section   1   Block   IV   Maungatautari   Survey   in Barry John Fynn, Bruce Ellett Page and Redoubt Trustees XIV Limited.

Duffy J