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Grazier v Grazier

Grazier v Grazier

Case [2014] NZHC 3058 3 December 2014

Trustee Appointment

Vesting of Property

Inherent Jurisdiction

Summary Judgment

Dispensing with Service

Trusts & Equity

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2014-409-000820 [2014] NZHC 3058

UNDER Section 52 of the Trustee Act 1956

AND

UNDER

Part 18 of the High Court Rules

BETWEEN

KAY LAUREL GRAZIER and MICHAEL STEWART GRAZIER and HOWARD JAMES GRAZIER AS TRUSTEES OF THE SG & KC GRAZIER FAMILY TRUST

Plaintiffs

AND

STEWART GOULD GRAZIER Defendant

Hearing 3 December 2014

Appearances:

S M J Hosegood for Plaintiffs
No appearance for Defendant

Judgment:

3 December 2014

JUDGMENT OF ASSOCIATE JUDGE OSBORNE
as to vesting of Trust land

Introduction

[1] Stewart Grazier has been a trustee of the SG & KL Grazier Family Trust (the

Trust) since it was settled by Mr Grazier and his wife, Kay Grazier on 17 September

2004. Sadly, Mr Grazier was diagnosed with Alzheimer’s in 2009. His condition

has deteriorated.

GRAZIER v GRAZIER [2014] NZHC 3058 [3 December 2014]

[2] By s 43(1) Trustee Act 1956, it is provided that where a trustee is incapable of or unfit to act as a trustee:

the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person or no such person able and willing to act, then the surviving or continuing trustees for the time being … may by deed appoint a person or persons … to be a trustee or trustees in the place of the appointment of the first-mentioned trustee.

(emphasis added)

[3] Pursuant to that provision, Mrs Grazier and Michael Grazier, (one of Mr and Mrs Grazier’s sons), as the continuing trustees in whom power of appointment now vests, have by deed appointed Howard Grazier to be a trustee in the place of Mr Grazier.

Joinder

[4] This proceeding was initially issued by Mrs Grazier. After issue the deed I have referred to at [3] was enacted. On Ms Hosegood’s application, I have today made an order joining Howard Grazier as plaintiff. I dispense with the requirement to file amended pleadings.

The orders sought

[5] Mrs Grazier and Michael Grazier have filed an application for summary judgment seeking an order vesting a house owned by the Trust (the trust property) in the continuing and new trustees, Mrs Grazier, and Michael and Howard Grazier.

[6] The plaintiffs also applied to the Court for an order dispensing with service of the documents. The matter is urgent because the trustees have entered into an agreement for sale and purchase of the Trust property with an extended settlement date of 5 December 2014. To enable the sale to take place and settlement occur, the current trustees need a vesting order.

The application to dispense with service

[7] An order to dispense with service may be made under r 6.8(c) High Court Rules. That provision applies to identified circumstances in which the document has already come to the knowledge of the person to be served or it cannot be served.

[8] The issue in this case is not whether service can be effected on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Grazier v Grazier

Details

AGLC: Grazier v Grazier [2014] NZHC 3058
Case: [2014] NZHC 3058
Decision Date: 3 December 2014

CaseChat Overview and Summary

The High Court of New Zealand Christchurch Registry was presented with a case involving the vesting of trust land, specifically the former family home of Kay Laurel Grazier and Stewart Gould Grazier, now owned by the SG & KC Grazier Family Trust. Stewart, who has been diagnosed with Alzheimer's disease, is a trustee of the trust, but his condition has rendered him unfit to act as such. Kay and their son Michael, who are continuing trustees, appointed Howard, another son, as a trustee in Stewart's place. The plaintiffs sought an order vesting the trust property in the continuing and new trustees to facilitate the sale of the property, which is necessary for the trustees to meet their obligations. Additionally, they applied for an order to dispense with service on Stewart, as serving him would serve no meaningful purpose given his cognitive impairment.

The court had to determine whether it was appropriate to dispense with service on Stewart, and if the vesting order should be granted. The plaintiffs argued that Stewart's condition rendered him unable to understand or participate in the decision-making process concerning the sale of the trust property. They cited evidence from Stewart's general practitioner, Dr. Michael Tarry, and an affidavit from Michael, which detailed Stewart's cognitive decline and inability to comprehend the proceedings. The court found that serving Stewart with the legal documents would not be beneficial, as he would not understand their contents or be able to meaningfully participate in the decision-making process.

The court granted the application to dispense with service on Stewart, relying on the inherent jurisdiction of the court to regulate its own process and proceedings. The court found that Stewart's cognitive impairment made it unlikely that he would understand the proceedings, and serving him with the documents would only cause him unnecessary distress. The court also granted the vesting order, as the sale of the trust property was a decision for the trustees, and Stewart's cognitive decline did not provide him with an arguable defence to the application.

The final orders of the court were to dispense with service on Stewart, vest the property in the continuing and new trustees, and make no order as to costs, as the trustees have the right to reimbursement of their proper expenses incurred in the proceeding under the trust deed. The sale of the trust property can now proceed, with the trustees acting in their capacity to manage the trust assets in accordance with the trust deed.

Orders