Green v Green - [2019] NZHC 1467

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001158

[2019] NZHC 1467

UNDER the Trustee Act 1956

IN THE MATTER

of an application for removal of a trustee and a vesting order and a variation of a trust deed

BETWEEN

MICHAEL JOHN GREEN, DAVID

CHARLES GREEN and SUSAN FAY PETCH

Applicants

AND

ROBERTA JOYCE GREEN

Respondent

Hearing: 26 June 2019

Appearances:

D Mitchell for the Applicants

No appearance by or on behalf of the Respondent

Judgment:

26 June 2019

JUDGMENT OF WOOLFORD J

Counsel/Solicitor:

Douglas Mitchell Lawyer, Auckland

GREEN v GREEN [2019] NZHC 1467 [26 June 2019]

[1] The Bobbie Green Family Trust was settled by the respondent, Roberta Joyce Green, on 24 April 1993. Ms Green is also a trustee of the Trust and a discretionary beneficiary. Ms Green’s three children, Michael John Green, David Charles Green and Susan Fay Petch, are the other trustees and final beneficiaries. The trustees are the registered proprietors of a residential property at 12 Kotare Place, Sandspit, being the land comprised in Record of Title Identifier NA53C/1247, North Auckland Land Registration District, being Lots 103 and 127 on Deposited Plan 98537 (the property).

[2] On 7 November 2013, Ms Green executed an enduring power of attorney in relation to personal care and welfare, appointing her daughter, Ms Petch, as her attorney in relation to personal care and welfare. On the same day, she also executed an enduring power of attorney in relation to property appointing her three children as her attorneys in relation to her property.

[3] Ms Green now has severe cognitive impairment and is no longer competent to make sound decisions regarding her health and welfare and her property. She is currently a resident of St Kilda Care Home Hospital at 91 Alan Livingston Drive, Cambridge. St Kilda specialises in dementia care.

[4] Ms Green’s three children wish to sell the property in order for the Trust to continue funding Ms Green’s care. The difficulty is that Ms Green is unable to authorise the sale of the property due to her incapacity. They, therefore, seek orders removing their mother as a trustee of the Trust and vesting title to the property at 12 Kotare Place, Sandspit, in their joint names as the remaining trustees. They also seek an order varying cl. 9 of the Trust to permit the power of appointment of a new trustee by the remaining trustees.1

Application for leave to commence the proceedings by originating application and directions as to service

[5] This is not the type of proceeding that can be commenced by way of originating application as of right pursuant to rr 19.2 – 19.4 of the High Court Rules 2016. However, the Court may, in the interests of justice, permit any proceeding not

1 Currently only Ms Green as the settlor of the Trust is nominally able to remove or appoint trustees.

mentioned in r 19.2 – 19.4 to be commenced by way of originating…

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 Green v Green

Details

AGLC: Green v Green [2019] NZHC 1467
Case: [2019] NZHC 1467
Decision Date: 26 June 2019

CaseChat Overview and Summary

The Bobbie Green Family Trust was settled by Roberta Joyce Green on 24 April 1993. The Trust has four trustees: Ms Green, who is also a beneficiary, and her three children, Michael John Green, David Charles Green and Susan Fay Petch, who are also beneficiaries. The trustees hold title to a residential property at 12 Kotare Place, Sandspit. Due to severe cognitive impairment, Ms Green is unable to make decisions regarding her property and care, and the applicants wish to sell the property to fund Ms Green’s care. The applicants seek orders removing Ms Green as a trustee, vesting title to the property in the remaining trustees, and varying the Trust deed to permit the remaining trustees to appoint a new trustee.

The court considered whether the proceeding could be commenced by way of originating application and whether the application should proceed without service on Ms Green or any other person. The court also considered whether the removal of Ms Green as a trustee, vesting order and variation of the Trust deed were appropriate. The court held that the proceeding could be commenced by way of originating application and that it was appropriate for the application to proceed without service on Ms Green or any other person. The court found that the removal of Ms Green as a trustee, vesting order and variation of the Trust deed were appropriate in the circumstances.

The court made orders removing Ms Green as a trustee of the Bobbie Green Family Trust, vesting the title to the property at 12 Kotare Place, Sandspit in the joint names of the remaining trustees, and varying clause 9 of the Bobbie Green Family Trust to permit the power of appointment of a new trustee by the remaining trustees. The costs of the application were to be met by the Bobbie Green Family Trust.

Orders