IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-2164
[2019] NZHC 2633
UNDER
Section 52 of the Trustee Act 1956
IN THE MATTER
of the Hope Family Trust
IN THE MATTER
of a claim for orders vesting property under section 52 of the Trustee Act 1956 and appointing a person to convey property under s 58 of the Trustee Act 1956
BETWEEN
BRYCE EVAN HOPE AND
PROFESSIONAL TRUSTEE SERVICES 2017 LIMITED, being the trustees of THE HOPE FAMILY TRUST Plaintiffs
AND
CAMILLE ANN HOPE
Defendant
Hearing:
On the papers
Appearances:
P Amaranathan for the Applicants
Judgment:
16 October 2019
JUDGMENT OF GORDON J
This judgment was delivered by me on 16 October 2019 at 11 am, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Rice Craig, Papakura, Auckland
HOPE v HOPE [2019] NZHC 2633 [16 October 2019]
[1] The applicants, Bryce Evan Hope and Professional Trustee Services 2017 Ltd, as trustees of the GS and CA Hope Family Trust (the Trust), seek an order under s 52 of the Trustee Act 1956 (the Act) vesting a realty asset of the Trust in them as continuing trustees and an order appointing the Registrar of Lands to convey the asset concerned to the continuing trustees.
[2] They also seek associated orders permitting commencement of this proceeding by way of originating application and dispensing with both the appointment of a litigation guardian and service of this proceeding. The application is supported by an affidavit of Bryce Hope.1
Background
[3] The Trust was settled by deed (the Trust Deed) on 17 December 2001 by Graham Stanley Hope and his wife, Camille Ann Hope, the parents of Bryce. The original trustees of the Trust were Graham, Mrs Hope and Hackshaw Trustees Ltd.
[4] The primary beneficiaries of the Trust are the settlors’ children, being Bryce and his three siblings. The discretionary beneficiaries are: Mrs Hope; the primary beneficiaries; the children, grandchildren and great grandchildren of any primary beneficiaries; any wife, husband, widow or widower of any of the primary beneficiaries; any wife, husband, widow or widower of any child, grandchild or great grandchild of the primary beneficiaries; the parents of a settlor; the brothers and sisters of a settlor and the respective wives, husbands, former wives, former husbands, widows, widowers, children and grandchildren.
[5] The Trust owns a property at 10 Byblos Place, The Gardens, Manukau (the property) which was Graham and Mrs Hope’s home. Mrs Hope continued to live in the home after Graham’s death until she moved into a secure specialist dementia facility on 2 August 2019.
[6] Graham died on 23 November 2008. He was retired as trustee and Bryce was appointed as a trustee in his place on 30 May 2009. On 24 October 2017, by deed,
1 I will refer to the male family members by their Christian names given the common surname.
Hackshaw Trustees Ltd was retired as a trustee and Professional Trustee Services…
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.
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AGLC
Hope v Hope [2019] NZHC 2633
Case
[2019] NZHC 2633
Decision Date
CaseChat Overview and Summary
The High Court of New Zealand heard a case brought by Bryce Evan Hope and Professional Trustee Services 2017 Limited, the trustees of the Hope Family Trust, against Camille Ann Hope. The trustees sought an order vesting a realty asset of the Trust in them and appointing the Registrar of Lands to convey the asset to the trustees, as well as other associated orders. The Trust, settled by Graham Stanley Hope and Camille Ann Hope on 17 December 2001, owns a property at 10 Byblos Place, The Gardens, Manukau, which was the family home. The primary beneficiaries of the Trust are the settlors' children, with discretionary beneficiaries including relatives of the settlors and beneficiaries. Following Graham's death, Bryce was appointed as a trustee of the Trust, and Hackshaw Trustees Ltd was later replaced by Professional Trustee Services 2017 Ltd. Camille Ann Hope, who suffered from dementia, was assessed by a psychiatrist to lack the capacity to make decisions about her personal care and welfare. The Court was required to decide whether the proceeding could be commenced by way of an originating application, whether a litigation guardian needed to be appointed for Camille Ann Hope, and whether service of the proceeding on the beneficiaries of the Trust was necessary. The Court also needed to determine if the vesting order and the appointment of the Registrar of Lands should be granted.
The Court held that the proceeding could be commenced by way of an originating application as it was appropriate in the circumstances. The Court found it unnecessary to appoint a litigation guardian for Camille Ann Hope as she lacked the capacity to understand the advice or the purpose of the proceeding. Service of the proceeding on the beneficiaries of the Trust was also deemed unnecessary as the vesting order did not adversely affect their interests. The Court granted the vesting order, stating that it was appropriate to vest the property in the continuing trustees to ensure they could deal with the property in accordance with their duties. However, the Court found it unnecessary to make a further order under section 58 of the Trustee Act 1956, as the vesting order was sufficient.
In conclusion, the Court ordered that the proceeding could be commenced by way of an originating application, that the appointment of a litigation guardian for Camille Ann Hope was dispensed with, that service of the proceeding on the beneficiaries of the Trust was not required, and that the property at 10 Byblos Place, The Gardens, Manukau, was vested in Bryce Evan Hope and Professional Trustee Services 2017 Ltd.