Fynn v Fynn
[2014] NZHC 2210
•11 September 2014
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