Hayes v Hayes - [2020] NZHC 569

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-00401

[2020] NZHC 569

UNDER Part 19 of the High Court Rules and the Trustee Act 1956

IN THE MATTER

of the Hayes Family Trust

BETWEEN

HILTON ROSS HAYES and

SW TRUST SERVICES LIMITED

Applicants

AND

ELIZABETH MILLIGAN HAYES

Respondent

Hearing: On the papers

Judgment:

19 March 2020

Reissued:

20 March 2020

JUDGMENT OF KATZ J

This judgment was delivered by me on 19 March 2020 at 3:00pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Simpson Western, Auckland

HAYES v HAYES [2020] NZHC 569 [19 March 2020]

Introduction

[1] Hilton Ross Hayes and SW Trust Services Limited are the trustees of the Hayes Family Trust (“Trust”). They seek orders vesting the title of a trust property in their names as the current trustees of the Trust.

Background

[2] The Trust was settled by deed dated 11 June 2002. The settlors of the trust were Hilton Ross Hayes and Elizabeth Milligan Hayes (husband and wife). The trustees were the two settlors, together with SW Trust Services Limited. The beneficiaries of the trust are Tracey Michelle Graham and Darryn Nikolai Hayes, the children of the settlors. The settlors each had the power to appoint trustees and remove trustees that they had appointed.

[3]The trust property comprised five properties, namely:

(a)The property situated at unit B 59-61 Bank Street, North Auckland, comprised in title Identifier NA104C/357.

(b)The property situated at unit C 59-61 Bank Street, North Auckland, comprised in title Identifier NA104C/358.

(c)The property situated at 7A Piemark Drive, North Auckland, comprised in title Identifier NA96C/228.

(d)The property situated at 41 El Dorado Leader, South Auckland, comprised in title Identifier SA21D/1174.

(e)The property situated at 9 Francis Street, South Auckland, comprised in title Identifier SA85/258.

[4] At the same time as settling the trust, Ms Hayes transferred her powers of appointment and removal to Mr Gary Graeme Simpson to exercise if she died or was permanently unable to use them. On or about 8 June 2015, Ms Hayes was diagnosed as having lost capacity. By way of deed of removal dated 3 March 2020, she was

removed as a trustee of the Trust by Mr Simpson and Mr Hayes. Ms Hayes, however, remains on the certificate of title of the property, which gives rise to the present application. The applicants seek:

(a)leave to bring the application as an originating application;

(b)an order dispensing with service on Ms Hayes; and

(c)a vesting order in respect of the trust property.

Leave to bring the application as an originating application

[5] This proceeding cannot be commenced by way of originating application as of right, pursuant to rr 19.2-19.4 of the High Court Rules. However, the Court may, in the interests of justice, permit any proceeding not mentioned in rr 19.2-19.4 to be commenced by originating application. It is well established that in a case like this, where there is in reality no opposing party, an…

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 Hayes v Hayes

Details

AGLC: Hayes v Hayes [2020] NZHC 569
Case: [2020] NZHC 569
Decision Date: 19 March 2020

CaseChat Overview and Summary

In the case of Hayes v Hayes, Hilton Ross Hayes and SW Trust Services Limited, as trustees of the Hayes Family Trust, sought to have the title of a trust property vested in their names. Elizabeth Milligan Hayes, a former trustee and settlor of the Trust, remained on the certificate of title for the trust property despite being removed as a trustee. The applicants sought leave to bring the application as an originating application, an order dispensing with service on Elizabeth Milligan Hayes, and a vesting order for the trust property. The legal issues before the Court were whether leave should be granted to bring the application as an originating application, whether service could be dispensed with on Elizabeth Milligan Hayes, and whether the vesting order should be granted.

The Court found that the proceeding could be brought as an originating application in the interests of justice, as there was no opposing party in reality. The Court also determined that service could be dispensed with on Elizabeth Milligan Hayes, as it would serve no useful purpose given her mental condition and the lack of impact on beneficiaries’ rights. Regarding the vesting order, the Court found that it was appropriate to vest the trust property in the remaining trustees, Hilton Ross Hayes and SW Trust Services Limited, as Elizabeth Milligan Hayes was already removed as a trustee due to her mental condition. The orders did not affect any beneficiaries' rights or obligations owed by the trustees.

The Court made the following orders: leave was granted to bring the application as an originating application, service of the proceedings on Elizabeth Milligan Hayes and the beneficiaries of the Hayes Family Trust was not required, and the trust properties were vested in the names of the current trustees, Hilton Ross Hayes and SW Trust Services Limited.

Orders