Gutmann v Gutmann

[2016] NZHC 107

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-3169 [2016] NZHC 107

UNDER

Part 19 of the High Court Rules and ss 51

and 52 of the Trustee Act 1956

IN THE MATTER

of an application for removal and replacement of an incapacitated trustee and vesting of land in trustees

BETWEEN

MARIA MAGDALENA GUTMANN AS TRUSTEE OF THE ELBACH TRUST Plaintiff

AND

FRITZ PETER GUTMANN AS TRUSTEE OF THE ELBACH TRUST Defendant

Hearing:	(on the papers)
Appearances:	S-J Neville for the Plaintiff
Judgment:	11 February 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 11 February 2016 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms S-J Neville, Ellis Gould, Solicitors, Auckland

GUTMANN v GUTMANN [2016] NZHC 107 [11 February 2016]

[1]      The plaintiff and the defendant are the current trustees of the Elbach Trust. A former trustee, Peter David Ellis, has retired.   The power of appointment of new trustees is vested by the trust deed in the plaintiff and the defendant.  The plaintiff has applied for orders for removal of the defendant as a trustee, and the appointment of a new trustee, with a related order in respect of title to land, on the grounds that the defendant is incapable through infirmity of acting as a trustee and performing other powers and duties vested in him under the trust deed.

[2]      The named beneficiaries of the trust are the plaintiff, the defendant, and their two sons, Peter Claus Gutmann and Stephen Michael Gutmann.  An order is sought appointing Stephen Gutmann as a new trustee.  He was granted power of attorney for the  defendant  by deed  dated 23  May 1989.    Stephen  Gutmann consents  to  the appointment.   Peter Gutmann, by affidavit, has recorded his consent to the appointment of his brother as a new trustee to replace his father as trustee.

[3]      There is an affidavit of Dr William Glenn Reeve testifying that the defendant now has severe dementia, is unable to manage his own welfare or financial affairs, has advanced memory impairment and hardly speaks or communicates at all.   Dr Reeve expresses his opinion that the defendant would be unable to instruct a lawyer or any court due to his very advanced dementia.

[4]      I am satisfied that there should be orders removing the defendant as a trustee and appointing Stephen Michael Gutmann as a new trustee and that the assets of the trust be vested in the plaintiff and Stephen Michael Gutmann as trustees of the Elbach Trust. There are orders accordingly.

[5]      A further order is sought vesting of title to trust land, currently registered in the names of the plaintiff and defendant as proprietors, in the names of the plaintiff and Stephen Michael Gutmann. That further order is also made accordingly.

[6]      There is no application for an order in respect of the power of appointment of new trustees currently vested in the defendant and associated powers vested in the defendant (as well as the plaintiff), and related statutory powers vested in the defendant (as well as the plaintiff) pursuant to clauses 15 and 16 of the Trust Deed.

The plaintiff and Stephen and Peter Gutmann may consider it appropriate to seek further orders in that regard.   If that is the case a memorandum, with supporting affidavits from the plaintiff and Stephen and Peter Gutmann, may be filed within four weeks of the date of this judgment.  The memorandum and affidavits should be directed to me.  Because of this the file should not be closed in the meantime.  If

nothing further has been filed by 15 March 2016 the file is to be closed.

Woodhouse J