Grant v Dowrick

[2018] NZHC 2242

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000124

[2018] NZHC 2242

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

SIMON DAVID GRANT, GULIELMA MARGARET DOWRICK and ALASTAIR JOHN MANSELL

Applicants

AND

DAVID JOHN DOWRICK

Respondent

Hearing:	On the papers
Judgment:	29 August 2018

JUDGMENT OF COURTNEY J

GRANT & ORS v DOWRICK [2018] NZHC 2242 [29 August 2018]

[1]    The applicants, Simon David Grant, Gulielma Margaret Dowrick and Alastair John Mansell, are all trustees of the DJ & GM Dowrick Trust  settled by deed on    28 April 1998. Mrs Dowrick and Mr Mansell were original trustees, along with Mrs Dowrick’s husband, David John Dowrick. Mr Grant was only appointed recently pursuant to a Deed of Removal of Trustee and Appointment of New Trustee. He replaced Mr Dowrick, who is now incapable of continuing as a trustee by reason of dementia.

[2]    The applicants now wish to transfer the trust property (the land contained in Certificate of Title SA1B/1191 being Lot 17 DPS7297) to them so that they can continue to deal with the land. Mr Dowrick is unable to execute the necessary documentation as a result of his state of health. The applicants have therefore applied for:

(a)Leave to bring an application under Part 19 of the High Court Rules and an order dispensing with service on Mr Dowrick;

(b)A vesting order under s 52(1)(b)(i) Trustee Act 1956, vesting the trust property in the applicants as the continuing trustees.

[3]    The applications are supported by affidavits of Mr Mansell, Mr Grant and Mrs Dowrick. Mrs Dowrick annexes a certificate from a medical practitioner, Dr John Gemming, as to Mr Dowrick’s mental capacity.   Dr Gemming’s opinion is that     Mr Dowrick is not wholly competent to manage his affairs in relation to his property. I am satisfied from the affidavits that it is unnecessary to effect service on Mr Dowrick and that there is no other party upon whom service ought to be effected. In the circumstances, an originating application is an appropriate way of proceeding with this application. I am satisfied that the substantive application is properly made also.

[4]Orders are accordingly made in the terms of the draft orders filed.

P Courtney J