Hammond v Van Erp

[2018] NZHC 3058

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-319

[2018] NZHC 3058

UNDER

Part 19 of the High Court Rules and Trustee Act 1956

IN THE MATTER

of an application for a vesting order in respect of land

BETWEEN

JOHANNA LINDA HAMMOND AND ALLEN NEEDHAM TRUSTEES (2009) LIMITED

Applicants

AND

FRANK LAMBERT VAN ERP

Respondent

Hearing:	On the papers
Counsel:	G J Summerell for the Applicants
Judgment:	23 November 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 23 November 2018 at 2.25 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Solicitors:
Allen Neeham & Co Limited, Morrinsville

HAMMOND v VAN ERP [2018] NZHC 3058 [23 November 2011]

Introduction

[1]        The applicants, as the continuing trustees of the Frank van Erp Family Trust, seek orders granting:

(a)leave to commence proceedings by way of an originating application;

(b)dispensing with service; and

(c)substantive orders vesting a property situated at 2/49 Rata Street, Te Aroha in the continuing trustees.

Background

[2]        The respondent and independent trustee, Allen Needham Trustees (2009) Limited, are the registered owners of the property at Te Aroha in their capacities as trustees of the Trust.

[3]        In 2013 the respondent became affected by dementia and is now certified by his general practitioner as being mentally incapable.

[4]        On 26 September 2018 the respondent was removed as a trustee of the Trust by Allen Needham Trustees (2009) Limited, relying on the powers contained in s 43 of the Trustee Act 1956. In his stead Ms Johanna Linda Hammond (who is the daughter of the respondent) was appointed as trustee.

[5]        On 31 July 2018 the respondent was admitted into permanent rest home care in Morrinsville. The applicants now wish to sell the Te Aroha property and invest the proceeds for his benefit. The discretionary beneficiaries of the Trust include the respondent and Ms Hammond. Ms Hammond is in turn identified as a final beneficiary.

Discussion

[6]        I am satisfied that the matter is appropriately commenced by way of originating application having regard to the limited scope of the matters in issue and the absence of any requirement for interlocutories.

[7]        I also regard it as appropriate to dispense with service having regard to the respondent’s mental incapacity and the fact that he cannot therefore be expected to understand the proceedings. I note the affidavit of Mr Summerell, the respondent’s solicitor and a director of Allen Needham Trustees (2009) Limited, that service would cause undue emotional distress.

[8]        I also consider it appropriate to dispense with service on the discretionary beneficiaries1 on the basis that their discretionary interests are adequately protected by the current trustees and in particular the independent trustee.

[9]        As to the substantive orders sought I likewise regard these as appropriately granted. The vesting of the land is necessary in order to bring the registered position into conformity with the current trustee appointments in circumstances where I am satisfied that the respondent’s incapacity prevents him from executing the documents otherwise necessary to do so.

Result

[10]I make orders:

(a)granting leave to commence proceedings by way of originating application;

(b)dispensing with service of the originating application; and

(c)vesting the following property in the name of Johanna Linda Hammond and Allen Needham Trustees (2009) Limited as trustees of the Frank van Erp Family Trust pursuant to s 52(1)(b)(i) of the Trustee Act 1956:

1      To the extent there are any.

The land contained in Certificate of Title SA 43B/777 situated at 2/49 Rata Street, Te Aroha comprising a fee simple one half share in Lot 1 DPS19656 and leasehold estate created under Instrument L H862235.2 in Flat 2 Deposited Plan South Auckland 51197.

Muir J