Hing v Hing

[2018] NZHC 2315

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-98 [2018] NZHC 2315

UNDER

Part 19 of the High Court Rules

AND UNDER

Section 52 of the Trustee Act 1956

IN THE MATTER

of an application to vest land in trustees

BETWEEN

MICHELLE ASHLEY HING and SARAH JANE HING

Applicants

AND

LINDA CHRISTINE HING as trustee of the

LINDA HING FAMILY TRUST Respondent

Hearing:	On the papers
Appearances:	VM McGoldrick for Applicants
Judgment:	4 September 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 4 September 2018 at 4.30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

HING v HING [2018] NZHC 2315 [4 September 2018]

[1]      Linda Christine Hing (Linda) and Northland Trustee (2014) Limited were the original trustees of the Linda Hing Family Trust created by Deed of Trust dated

30 January 2014.  Through illness, Linda has lost the capacity to manage her own personal affairs.   Pursuant to enduring powers of attorney in relation to property, Linda's daughters, Sarah and Michelle, hold the power of appointment and removal of trustees under the Trust. They propose to exercise those powers to remove Linda as a trustee on the basis of her incapacity and appoint themselves as the replacement trustees.

[2]      Sarah and Michelle are the final beneficiaries under the Trust; the discretionary beneficiaries include their children who are aged between 29 and 11 years.

[3]      The trust owns a property at 40 Otuhiwai Crescent, Tikipunga, Whangarei (Certificate of Title NA6B/72) which is unencumbered.  As Linda is now residing in a rest home, it may be necessary for the trust property to be sold in order to assist with the cost of her care.

[4]      For the trustees to be able to deal with the property, it is necessary for Linda be removed from the title as a registered proprietor and for Sarah and Michelle to be substituted as registered proprietors with the trustee company.

[5]      I am satisfied that, in the circumstances it is proper to grant leave to the applicants to apply for appropriate orders by originating application and to dispense with service of the proceeding.  The Court is in a position to make the final orders sought.

[6]      Accordingly, I make the following orders:

(a)The applicants shall have leave to apply by originating application under r 19.5 of the High Court Rules 2016.

(b)Under r 6.8 of the High Court Rules, it is not necessary to serve the proceedings on the respondent or any other person.

(c)Pursuant to s 52 of the Trustee Act 1956, the property at 40 Otuhiwai Crescent, Tikipunga, Whangarei (Certificate of Title NA6B/72) is hereby vested in the continuing trustee Northland Trustee (2014) Limited and the new trustees, Michelle Ashley Hing and Sarah Jane Hing.

(d)      The cost of the application shall be met by the Linda Hing Family Trust.

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

Toogood J