Goulevitch v Parkes

[2014] NZHC 1571

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2014-488-90 [2014] NZHC 1571

UNDER

Part 19 of the High Court Rules

Sections 43(1)(3) and 52 of the Trustee
Act 1956

IN THE MATTER

of an application for remove an incapacitated trustee and vest land in the remaining trustees

BETWEEN

ROBYN GOULEVITCH and JAMES GRENVILLE PARKES as trustees of the Iris and Joe Parkes Family Trust Applicants

AND

IRIS PARKES Respondent

On the papers
Counsel:	V McGoldrick for applicants
Judgment:	7 July 2014

JUDGMENT OF FAIRE J

This judgment was delivered by me on 7 July 2014 at 10:30am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Henderson Reeves Connell Rishworth, Whangarei

Goulevitch and Parkes as trustees of the Iris and Joe Parkes Family Trust v Parkes [2014] NZHC 1571 [7 July

2014]

[1]      Ms Robyn Goulevitch and Mr James Grenville Parkes are trustees of the Iris

and Joe Parkes Family Trust (“the trust”).  The trust was established on 4 December

2002.  Mrs Iris Parkes is also a trustee.

[2]      There is evidence that Mrs Iris Parkes suffers from dementia and that this condition is irreversible.   That evidence is in the form of a certificate of mental incapacity for enduring power of attorney in relation to property given by Dr Tus Ferando, a physician/geriatrician at Whangarei Hospital on 20 January 2014.

[3]      On 14 August 2012, Mrs Iris Parkes executed an enduring power of attorney in favour of her daughter, Robyn Goulevitch, in relation to her property.  This was done for the purposes of Part IX of the Protection of Personal Property Rights Act

1988. The power of attorney expressly states:

I authorise my attorney to act while I am mentally capable and to continue to act if I become mentally incapable.

[4]      Mrs  Iris  Parkes  was  removed  as  trustee  through  Ms Robyn  Goulevitch exercising powers conferred by s 43(1) of the Trustee Act 1956 and in reliance on the enduring power of attorney.  This was done because Mrs Iris Parkes was unfit to act as trustee by virtue of the dementia.

[5]      The trustees own a property, which is described as Flat 1/10, Ford Avenue, Kamo,  Whangarei  (certificate  of  title  NA101A/510).    The  trustees  now  seek  a vesting order so that the property may be transferred into the names of Robyn Goulevitch and James Grenville Parkes alone.

[6]      The purpose of the vesting order is to regularise the position so that all present trustees are shown as the registered proprietors.

[7]      The application before me seeks an order for leave to apply for the vesting order by originating application and an order for directions as to service and further conduct of the proceedings.  All current beneficiaries consent to the orders that are sought.   I am satisfied that it is appropriate that I grant leave and dispense with service of the application on Mrs Iris Parkes.  There are no outstanding matters.  For that reason, I propose to deal with substantive proceeding now.

[8]      Accordingly,  I order that the property owned by the Iris and Joe Parkes Family Trust, at Flat 1/10 Ford Avenue, Kamo, Whangarei, certificate of title NA101A/510 vest in the remaining trustees, Robyn Goulevitch and James Grenville Parkes  alone.    I  reserve  leave    to  apply in  case  further  orders  are  required  to implement the vesting of the property in the remaining trustees.   Such application may be made by memorandum.

[9]      In view of the fact that this proceeding is taken on behalf of the trust and for the benefit of the trust, there is no need for a formal order for costs to be made and,

for that reason, none is made.  Costs will ultimately be paid out of the trust’s funds.

JA Faire J