Guise v Guise - [2019] NZHC 3387

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-137

[2019] NZHC 3387

BETWEEN
GRAHAM THOMAS GUISE

Plaintiff

AND

DONALD ALEXANDER GUISE, GRAHAM THOMAS GUISE and JAN

ELIZABETH GUISE as trustees of the Donald Guise Trust

Defendants

Hearing: 18 December 2019 (On the papers)

Counsel:

R G R Eagles for Plaintiff

Judgment:

18 December 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 18 December 2019 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 18 December 2019

GUISE v GUISE [2019] NZHC 3387 [18 December 2019]

[1] The parties to this proceeding are the original trustees of the Donald Guise Trust (“the Trust”). The Trust was established by a Deed dated 22 January 2009.

[2] Donald Alexander Guise (“Donald”) was the settlor of the Trust. Donald, his daughter and his daughter’s children are the beneficiaries along with trusts of which they are beneficiaries and any charities nominated by the appointers, though none have been nominated.

[3] I note that neither Graham Thomas Guise (“Graham”) or Jan Elizabeth Guise (“Jan”) are beneficiaries.

[4] Graham is Donald’s brother. Graham is also the property manager and welfare guardian for Donald under orders of the Family Court. The fact that Graham holds those positions suggests Donald lacks capacity. Donald suffered in July 2013 what his medical practitioner describes as a devastating stroke. His medical practitioner confirms that Donald is unable to communicate or manage business or property affairs to any degree.

[5] The Trust owns a property which has been essentially vacant since Donald’s stroke. Some of Donald’s chattels are still in the property. The trustees are confronting the need for decisions to be made about the property and ultimately having it cleared and, in all likelihood, sold. To put themselves into a position where they can deal with the Trust’s property, this application has been brought to have Donald removed as trustee of the Trust and the property vested in the remaining trustees.

[6] Accompanying the application is an interlocutory application for directions as to service. It seeks that service be dispensed with so that the application can be dealt with on the papers.

[7] As Donald is incapacitated, r 4.30 of the High Court Rules 2016 requires him to have a litigation guardian unless the Court orders otherwise. I am satisfied that in this case it is unnecessary to appoint a litigation guardian. In my view, nothing would

be gained from that appointment. Donald will remain a beneficiary of the Trust, indeed the terms of the Trust Deed are unaltered by this application.

[8] It is clear from the medical evidence that Donald would not be able to understand the nature of this application. Nor, given Donald’s lack of capacity could it sensibly be suggested that he should remain as a trustee thereby leaving the Trust in a position where it cannot operate. I dispense with the need for a litigation guardian.

[9] Similar considerations…

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 Guise v Guise

Details

AGLC: Guise v Guise [2019] NZHC 3387
Case: [2019] NZHC 3387
Decision Date: 18 December 2019

CaseChat Overview and Summary

The High Court of New Zealand, Invercargill Registry, was asked to decide an application to remove Donald Alexander Guise from his position as a trustee of the Donald Guise Trust, and to vest the trust property in the remaining trustees. The application was brought by Graham Thomas Guise, who is Donald’s brother and the property manager and welfare guardian for Donald under orders of the Family Court. The court was required to determine whether it was appropriate to remove Donald as a trustee of the trust, and whether it was appropriate to vest the trust property in the remaining trustees. The court found that it was appropriate to remove Donald as a trustee, and to vest the trust property in the remaining trustees.

The court found that Donald was incapacitated and unable to communicate or manage business or property affairs to any degree. The court also found that it was necessary to remove Donald as a trustee in order to protect the interests of the beneficiaries and to restore the ability of the Trust to operate. The court held that the application was appropriate and was in the best interests of the Trust and the beneficiaries. The court found that it was appropriate to remove Donald as a trustee and to vest the trust property in the remaining trustees.

The court held that it was appropriate to remove Donald as a trustee of the Donald Guise Trust, and to vest the property at 70 Rocks Highway, Riverton being an estate in fee simple being Lot 11 on Deposited Plan 3533 contained in Record of Title SL153/150 Southland Land Registration District in Graham Thomas Guise and Jan Elizabeth Guise as the continuing trustees of the Donald Guise Trust. No order as to costs was sought and so none was made.

Orders