Green - [2019] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2019-43-000029

[2019] NZHC 1634

IN THE MATTER OF the Trustee Act 1956

AND

IN THE MATTER OF

an application for a Vesting Order pursuant to section 52(1)(a) of the Trustee Act 1956

BY

MICHAEL CHARLES BENTLEY GREEN AND DM HASTIE NOMINEES LIMITED

Applicants

Hearing: On the papers

Counsel:

T Wano for Applicants

Judgment:

12 July 2019

JUDGMENT OF COOKE J

[1]By application dated 2 July 2019 the applicants apply for orders:

(a)For leave to commence these applications by originating application under r 19.5 of the High Court Rules 2016.

(b)That pursuant to section 52 of the Trustee Act 1956 three properties comprised in certificate of titles TN143/132, TNB1/788 AND SA19B/1299 (collectively, “the Properties”) currently in the names of Donald Andrew Hastie and DM Hastie Nominees Limited be hereby vested in Michael Charles Bentley Green and DM Hastie Nominees Limited as trustees of the D & M Hastie Family Trust (No. 1) and the

GREEN AND DM HASTIE NOMINEES LTD [2019] NZHC 1634 (12 July 2019)

D & M Hastie Family Trust (No. 2) to have all effect as described in s 57 of the Trustee Act 1956.

[2] The applications are supported by an affidavit of Deborah Hastie sworn 19 June 2019, and a memorandum of counsel dated 2 July 2019.

[3] It is routine for applications of this kind to be commenced by way of originating application, and I accordingly grant that leave.

The relevant circumstances

[4]Section 52(1)(a) of the Trustee Act 1956 provides:

52 Vesting orders of land

(1)Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

(a) where the court appoints or has appointed a trustee of any land or interest therein, or where a trustee of any land or interest therein has been appointed out of court under any statutory or express power:

…

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

[5] This power can be utilised when the trustees of a trust have changed as a consequence of the exercise of a power of appointment under a trust deed, and the former trustee is no longer available to execute transfers. For example it has been used in the case of an incapacitated trustee when the holder of an enduring power of attorney is not able to execute transfers.1 It has also been exercised when powers of an appointment under the trust deed do not address the situation.2 Ultimately the issue for the Court is whether ordering the changes to the certificate of title is appropriate in the circumstances of the case given technical difficulties faced by the parties that cannot be remedied…

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.

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Details

AGLC: Green [2019] NZHC 1634
Case: [2019] NZHC 1634
Decision Date: 12 July 2019

CaseChat Overview and Summary

The applicants, Michael Charles Bentley Green and DM Hastie Nominees Limited, filed an application in the High Court of New Zealand seeking a Vesting Order under section 52(1)(a) of the Trustee Act 1956. The purpose of the application was to vest three properties in the names of the applicants as trustees of the D & M Hastie Family Trust (No. 1) and the D & M Hastie Family Trust (No. 2). The application was supported by an affidavit from Deborah Hastie and a memorandum of counsel. The court had to decide whether to grant leave for the applicants to commence the application by originating application and whether to vest the properties in the applicants as trustees of the mentioned trusts.

The central legal issue was whether the court should exercise its power under section 52(1)(a) of the Trustee Act 1956 to vest the properties in the applicants as trustees of the D & M Hastie Family Trust (No. 1) and the D & M Hastie Family Trust (No. 2). The applicants argued that the original trustees, who were the registered proprietors of the properties, had been removed as trustees, and new trustees had been appointed by deeds. The original trustees were removed due to mental incapacity, as evidenced by health practitioners' certificates. The court had to determine whether the applicants were the present trustees of the trust that owns the land and whether the former trustees should be removed and replaced by the present trustees who had been duly appointed by deeds of trust.

The court found that the applicants were the present trustees of the trust that owns the land and that the former trustees who were the registered proprietors should be removed and replaced by the present trustees who had been duly appointed by deeds of trust. The court was satisfied with the evidence provided, including the health practitioners' certificates of mental incapacity, and granted the application. The court exercised its power under section 52(1)(a) of the Trustee Act 1956 to vest the properties in the applicants as trustees of the D & M Hastie Family Trust (No. 1) and the D & M Hastie Family Trust (No. 2). The court also granted leave for the applicants to commence the application by originating application.

The court ordered that the three properties comprised in certificate of titles TN143/132, TNB1/788, and SA19B/1299 be vested in Michael Charles Bentley Green and DM Hastie Nominees Limited as trustees of the D & M Hastie Family Trust (No. 1) and the D & M Hastie Family Trust (No. 2) to have all effect as described in section 57 of the Trustee Act 1956.

Orders