Hill v Hill - [2018] NZHC 280

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-000046

[2018] NZHC 280

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

IN THE MATTER OF

an application for a vesting order in respect of land

BETWEEN

DOREEN HILL, ROBERT LESLIE ANCELL, MARGARET ANN MORELL and JANETTA PATRICIA WILSON

Applicants

AND

JAMES ROY HILL

Respondent

Hearing: On the papers

Judgment:

28 February 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 28 February 2018 at 4.00pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Nielson Law/D M O’Neill, Hamilton

HILL v HILL [2018] NZHC 280 [28 February 2018]

[1] This matter has come before me as a matter of some urgency. Orders are sought vesting land in the name of the applicants, and dispensing with service on the respondent.

[2] The background is straightforward. In 1997, one of the applicants – Doreen Hill, and her husband – the respondent – James Hill, settled a trust. The trust is known as the James and Doreen Hill Family Trust.

[3] The initial trustees were Mr Hill, Mrs Hill and their accountant – Robert Ancell.

[4] The final beneficiaries of the trust are the children of Mr and Mrs Hill. There are also discretionary beneficiaries, including members of the wider family.

[5] In 2008, Mr Hill suffered a stroke. He is in a rest home – as he requires 24- hour attention. Mrs Hill is incapable of providing that attention. Mr Hill also suffers from dementia and is unable to take care of himself. A registered medical practitioner, a Dr Campbell, has filed an affidavit recording, inter alia, that Mr Hill cannot understand speech, that he is unable to talk or communicate in any way whatsoever, and that he is unable to understand any matter pertaining to his health or wellbeing. He has also deposed that Mr Hill is totally dependent on others in every aspect of his life.

[6]The trustees own a residential property, situated in Gardiner Place, Hamilton.

[7] Mrs Hill wishes to sell that property. She, and her and Mr Hill’s daughters – Margaret Morell and Janetta Wilson – have entered into an agreement for sale and purchase. Settlement is due tomorrow. The daughters entered into the agreement for sale and purchase, because they hold an enduring power of attorney from their father. They mistakenly thought that the power of attorney permitted them to do so.

[8] A deed has been entered into removing Mr Hill as a trustee pursuant to s 43(1) of the Trustee Act 1956, and appointing Mrs Morell and Mrs Wilson as new trustees in his stead. The deed records that the remaining trustees – Mrs Hill and Mr Ancell –

vest the trust’s assets in themselves as remaining trustees, and in the new trustees, upon the trusts contained in the deed of trust.

[9] Orders are now sought vesting the trust property in the…

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 Hill v Hill

Details

AGLC: Hill v Hill [2018] NZHC 280
Case: [2018] NZHC 280
Decision Date: 28 February 2018

CaseChat Overview and Summary

The case of Doreen Hill and others versus James Roy Hill was heard by Wylie J in the High Court of New Zealand, Hamilton Registry. The applicants, Doreen Hill, Robert Leslie Ancell, Margaret Ann Morell, and Janetta Patricia Wilson, sought a vesting order in respect of land and dispensation from serving the respondent, James Roy Hill. The applicants aimed to sell a residential property owned by the trustees of the James and Doreen Hill Family Trust. The trust's original trustees were Doreen Hill, James Hill, and their accountant, Robert Ancell. The beneficiaries of the trust are the children of the Hills and other family members. James Hill, who was incapacitated due to a stroke, dementia, and other health issues, was unable to communicate or comprehend any matters regarding his health or wellbeing.

The legal issues before the court included whether service on James Hill should be dispensed with due to his incapacity and whether the removal of James Hill as a trustee and the appointment of new trustees was valid. The court determined that serving James Hill would be pointless due to his incapacity and that service on him should be dispensed with. The court also found that James Hill was properly removed as a trustee and that the new trustees were correctly appointed in accordance with the Trustee Act 1956. Given these findings, the court approved the vesting order and the draft order prepared by counsel.

The court's decision allowed the applicants to proceed with the sale of the residential property, as the vesting order enabled the remaining and new trustees to manage the trust's assets. The court's approval of the draft order ensured that the legal process for the vesting of the property and the removal of James Hill as a trustee was carried out in accordance with the law.

Orders