Harris v McLean

[2017] NZHC 1669

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2017-419-206 [2017] NZHC 1669

IN THE MATTER

of an Application for a Vesting Order

under the Trustee Act 1956

BETWEEN

PHILIP GEORGE HARRIS, PETER ROSS MCLEAN, ELISA AINSLEE MCLEAN AND LESLEY ANNE MCLEAN AS TRUSTEES OF THE LAUREL MCLEAN FAMILY TRUST Plaintiffs

AND

LAUREL MAUDE MCLEAN Defendant

Hearing:	On the papers
Appearances:	LMS Farquhar for the Plaintiffs No appearance on behalf of the Defendant
Judgment:	19 July 2017

JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 19 July 2017 at 3.30 pm

Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:…………………………

Counsel/Solicitors:

LMS Farquhar, McCaw Lewis, Hamilton

HARRIS v MCLEAN [2017] NZHC 1669 [19 July 2017]

[1]      The plaintiffs are the current trustees of the Laurel McLean Family Trust.  Mr Harris is an independent solicitor/trustee and Mr McLean, Ms E A McLean and Ms L A McLean are each children of the defendant Mrs L M McLean.  Mrs McLean is now 87 and resides in a rest home.

[2]      The trust was established on 7 March 1996 at which time the trustees were Mr Harris and the defendant Mrs L M McLean.  Mrs McLean was also the settler of the Trust.

[3]      Unfortunately  Mrs  McLean  suffers  from  vascular  dementia.     I  have considered the report of Dr E A Barrio Frojan who is the consultant physician at her rest home.  He says that she has very limited understanding of the purpose of and her role in the Trust and that, although she maintains reasonable physical health, she scored poorly in objective testing of mental capacity.  It is apparent that she has been in intellectual decline for several years, that her position is irreversible and continues to deteriorate.

[4]      On 24 March 2011 Mrs McLean executed an Enduring Power of Attorney in relation to Property and Personal Care and Welfare, appointing her daughter Ms E A McLean as her attorney.

[5]      In April 2017 and as a result of further deterioration in Mrs McLean’s mental acuity Mr Harris exercised the powers conferred by s 43(1) of the Trustee Act 1956 to remove her as Trustee and to replace her with each of her children.

[6]      The Trust is the owner of a half share of a property situated at 184 Granada Street, Mt Maunganui.  The present proceedings have been issued to obtain a Vesting Order1   so  that  the  property  may  be  transferred  into  the  names  of  the  existing Trustees. The purpose of the Vesting Order is to bring into consistency the registered proprietors as shown on the Certificate of Title and the identity of such current Trustees.  Although Mrs McLean executed an Enduring Power of Attorney in favour of her daughter the District Land Registrar will not accept Powers of Attorney or the

Deed of Removal and Appointment of New Trustees to facilitate that transfer.

1      Trustee Act s 52(1)(h).

[7]      I am invited to make directions as to service and, once made, to consider the substantive application.

[8]      The application for directions as to service seeks orders dispensing with service upon Mrs McLean.  I am satisfied having regard to her medical condition and inability to understand the affairs of the Trust that such order is appropriate.

[9]      Having made that order  I see no reason why the substantive application cannot now be disposed of.

[10]     I am satisfied that an order should be made vesting the half share of the property at 184 Granada Street, Mt Manuganui, being Certificate of Title SA51B/854 (“the property”), currently held by Laurel Maude McLean and Philip George Harris, in the names of Philip George Harris, Peter Ross McLean, Elisa Ainslee McLean and Lesley Anne McLean pursuant to s 52(1(h) of the Trustee Act 1956.

[11]     Although it will not be shown on the Register of Land the Vesting Order is made on the basis that each of Mr Harris, Mr McLean, Ms E A McLean and Ms L A McLean hold the half share in the property as Trustees of the Laurel McLean Family Trust.

[12]     I further order that all costs in relation to the application are to be paid from the funds of the Laurel McLean Family Trust.

Muir J