Hope v Hope

Case [2019] NZHC 2633


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…

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Hope v Hope [2019] NZHC 2633
Case
[2019] NZHC 2633
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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.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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