Harrington v Ferguson

[2017] NZHC 253

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-194 [2017] NZHC 253

IN THE MATTER

of an application under Section 52 of the

Trustee Act 1956

BETWEEN

DIANA HARRINGTON Applicant

AND

JAMES WILLIAM FERGUSON FOREMAN AS TRUSTEE OF THE PICASSO TRUST

Respondent

Hearing:	22 February 2017
Appearances:	S Grant for Applicant
Judgment:	23 February 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 23 February 2017 at 3.30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Harrington v Foreman [2017] NZHC 253 [23 February 2017]

[1]      Ms Harrington applies for:

(a)      Leave to commence this proceeding by way of originating application under Part 19 of the High Court Rules and for orders dispensing with representation of Mr Foreman and service on him or any other person; and

(b)      A vesting order pursuant to s 52 of the Trustee Act 1956.

[2]      The  relevant  evidence  in  support  of  Ms Harrington's  application  dated

10 February 2017 is set out in her supporting affidavit sworn on the same date.  I am assisted also by the memoranda filed by Ms Grant, counsel for Ms Harrington.

[3]      The grounds upon which the application are made are that Mr Foreman is a registered proprietor, as trustee of the Picasso Trust, of the properties at:

(a)       12 Reg Savory Place, being the property comprised and described in

Certificate of Title NA114A/775 (the Reg Savory property); and

(b)      15  Neales  Road,  East  Tamaki,  being  comprised  and  describes  in

Certificate of Title NA115C/36 (the Neales Road property).

[4]      The Picasso Trust was established in August 2001, the appointors under the Deed being Mr Foreman and Ms Harrington.   In March 2011, Ms Harrington was appointed sole new appointor; Mr Foreman was removed as a trustee of the Trust and Ms Dyer was appointed as Ms Harrington's co-trustee.

[5]      An agreement for the sale and purchase of the Reg Savory property has been entered into and settlement of the sale is due on 1 March 2017.  The requirements of the  Land Transfer Act  1952  concerning the transfer to  the purchaser  cannot  be complied with, because Mr Foreman is suffering from dementia and is no longer able to manage the property.

[6]      A property manager (Mr Stiassny) was appointed permanently to manage

Mr Foreman's affairs on August 2014.  I am satisfied from the evidence provided to

the Court both that Mr Foreman has no interest in the assets of the Picasso Trust, and that it is necessary for the Court to make vesting orders to enable the trustees to deal with both properties.

[7]      Copies of the pleadings and all relevant documents in the proceeding have been  served  on  Mr Foreman's  legal  advisers  and  on  Mr Stiassny's  solicitor,  and Mr Stiassny does not oppose the making of the order sought.   Furthermore, the beneficiaries of the Picasso Trust, Joshua Foreman and Charlotte Foreman, consent to the making of the orders sought.

[8]      The following orders are made accordingly:

(a)       The applicant shall have leave to bring the proceeding by way of originating application under Part 19 of the High Court Rules.

(b)The further service of the proceeding on the respondent and other interested persons is dispensed with.

(c)       The interest of James William Ferguson Foreman in the properties at:

(i)12  Reg  Savory  Place,  being  the  property  comprised  and described in Certificate of Title NA114A/775; and

(ii)15 Neales Road, East Tamaki, being comprised and describes in Certificate of Title NA115C/36,

shall be vested in Diana Harrington and Amy Marie Dyer as trustees of the Picasso Trust.

...........................................

Toogood J