G J Stern Family Trust

[2020] NZHC 2806

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001932

[2020] NZHC 2806

IN THE MATTER

AND

of the Trustee Act 1956

IN THE MATTER

of an application by JENNIFER LOUISE STERN and CHRISTOPHER JOHN DAVIS

as trustees of the G J STERN FAMILY TRUST for a vesting order

Hearing:	On the papers
Appearances:	J Armstrong for the Applicants
Judgment:	26 October 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 26 October 2020 at 3:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Armstrong Murray (J Armstrong), Auckland

The G J STERN FAMILY TRUST [2020] NZHC 2806 [26 October 2020]

[1]                  Jennifer Louise Stern and Christopher John Davis apply without notice in their capacity as trustees of the G J Stern Family Trust (the Trust) for permission to commence a proceeding by way of originating application and for a vesting order. Both Ms Stern and Mr Davis have filed affidavits.

Factual background

[2]                  The Trust owns several properties, all of which are currently registered in the names of Jennifer Louise Stern, Christopher John Davis, Gordon Joseph Stern and Apogee Trustees Limited (Apogee).

[3]                  On 27 March 2019, Gordon Joseph Stern retired as a trustee. On 19 September 2019, Apogee also retired as a trustee. Accordingly, Gordon Joseph Stern and Apogee are no longer trustees of the Trust.

[4]                  After his retirement in March 2019, Gordon Joseph Stern’s interest in the trust properties should have been removed, leaving Jennifer Louise Stern, Christopher John Davis and Apogee on the Records of Title. Unfortunately, Mr Stern was assessed as having lost mental capacity and his enduring powers of attorney were activated on  17 July 2019. Mr Stern therefore does not have the capacity to sign the authority and instruction forms required to transfer the Trust’s property out of his name. As the first to retire, Mr Stern’s interest in the Trust’s properties must be removed from the Records of Title before Apogee’s interest can be removed.

[5]                  Accordingly, the applicants wish to update the Records of Title relating to the Trust’s properties. In order to update the Records of Title, the applicants must produce to Land Information New Zealand an order removing Mr Stern from the Records of Title and vesting the properties in Jennifer Louise Stern, Christopher John Davis and Apogee. Once the Records of Title are registered in the above names, Apogee will complete an authority and instruction form removing their interest from the Records of Title.

[6]                  Apogee has not been named as an applicant in this proceeding because, following its retirement in September 2019, it is no longer a trustee of the Trust.

[7]                  The applicants submit that their application is an administrative step required to enable the Trust to continue operating and to allow the trustees to discharge their duties to the beneficiaries. Of itself, the application does not impact the beneficiaries. There is, accordingly, no need to serve the beneficiaries of the Trust or any other person.

Decision

[8]I am satisfied that the applications relate to matters of routine.

[9]                  Counsel has also certified that all reasonable inquiries and all reasonable steps have been made or taken to ensure that the application contains all relevant information, including any opposition or defence that might be relied on by any other party, or any facts that would support the position of any other party.

[10]              In those circumstances, there will be an order permitting the application under s 52 of the Trustee Act 1956 for a vesting order to be commenced by way of originating application. Furthermore, I am satisfied that a vesting order is required to vest the properties owned by the Trust in the names of Jennifer Louise Stern, Christopher John Davis and Apogee.

[11]              It is clear from the affidavit evidence that Mr Stern is no longer able to sign the requisite transfer documentation removing his interest from the Records of Title following his resignation as a trustee of the G J Stern Family Trust.

[12]              There will therefore also be orders that the following properties be vested in the names of Jennifer Louise Stern, Christopher John Davis and Apogee Trustees Limited as the registered owners of the property:

(a)the property at 17/140 Gills Road, Albany, Auckland, being Unit 17, Deposited Plan 346275 (Identifier 190206).

(b)the property at Unit D, 214 Lake Road, Hauraki, Auckland, being Unit B1 and Accessory Unit 13, 16-17, 30 and 1/6 share of Accessory Unit

10 and 1/3 share of Accessory Unit 20, 22-24 Deposited Plan 328694

(Identifier 117093); and

(c)the property at 12-14 Link Drive, Glenfield, Auckland, being Lot 2 Deposited Plan 123469 (Identifier 326829).

[13]Costs of the application are to be met by the Trust.

Woolford J