Hunt v Moran - [2018] NZHC 3108

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2018-406-40

[2018] NZHC 3108

UNDER the Trustee Act 1956

IN THE MATTER

of a Trust Deed dated 29 September 2005 creating the trust known as the Patricia Moran Trust

IN THE MATTER

of an application under sections 52 and 66 of the Trustee Act 1956 for orders in respect of that Trust

BETWEEN

JOANNE ROBYN HUNT

Applicant

AND

PATRICIA ANNE MORAN

First Respondent

AND

JOANNE ROBYN HUNT, JONEL MAREE CLEMETT AND REBECCA ANNE HUNT

Second Respondents

Hearing: On the papers

Counsel:

M Hardy-Jones for Applicant

Judgment:

29 November 2018

JUDGMENT OF CLARK J

Introduction

[1] In this proceeding Joanne Hunt applies without notice for orders pursuant to s 52 of the Trustee Act 1956 vesting 34 Magnolia Drive (Lot 2 DP 33203) in Joanne Hunt, Jonel Clemett and Rebecca Hunt as trustees of the Patricia Moran Trust. Joanne Hunt also applies to commence the proceeding by way of originating application on a without notice basis.

HUNT v MORAN [2018] NZHC 3108 [29 November 2018]

[2] The settlor and retired trustee of the Trust, Patricia Moran, lacks capacity. She is eighty-one years old and suffers from dementia. She has been removed as a trustee. The property at Magnolia Drive has been marketed for sale and an offer has been made to purchase the property. The Trustees cannot settle the transaction as the title remains in the name of the original trustees, including Patricia Moran.

Background

[3] The Trust was settled by Deed executed on 29 September 2005 by the trustees Joanne Hunt, her sister Jonel Clemett, and Ms Moran. The beneficiaries of the Trust are the three original trustees and Joanne’s three children.

[4] After a fall resulting in a fractured pelvis in late 2017 Ms Moran’s cognitive function declined rapidly. A letter dated 22 April 2018 from Dr Rhonda Turner, Ms Moran’s general practitioner, confirms Ms Moran is no longer capable of manging her affairs. Ms Moran has dementia with confusion, dysphasia, decreased memory and concentration. She has decreased judgment and does not have the ability to make decisions regarding her property.

[5] Joanne and Jonel signed a deed of discharge and appointment of trustee on 7 November 2018. Exercising their powers under cl 13 of the Trust deed and s 43 of the Trustee Act, Ms Moran was discharged as a trustee and Rebecca Hunt, Joanne’s eldest daughter, was appointed as a new trustee.

[6] The Trust’s significant asset is the property at Magnolia Drive. The property is empty. The property has been marketed and an agreement for sale and purchase of the property has been entered into for a purchase price of $681,000, the higher of two offers. The trustees wish to sell the property to provide for Ms Moran’s care. The sale and purchase agreement is expressed to be conditional upon the trustees receiving an order from the High Court vesting the property in the remaining, and newly appointed,…

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 Hunt v Moran

Details

AGLC: Hunt v Moran [2018] NZHC 3108
Case: [2018] NZHC 3108
Decision Date: 29 November 2018

CaseChat Overview and Summary

The matter of Hunt v Moran concerns an application by Joanne Robyn Hunt for orders under the Trustee Act 1956 to vest a property at 34 Magnolia Drive, Blenheim in certain trustees of the Patricia Moran Trust. The property is currently held in the name of the original trustees, including Patricia Moran, who has been removed from her role as trustee due to a loss of capacity resulting from dementia. The remaining trustees wish to sell the property to provide for Ms Moran’s care but are unable to do so without an order from the court.

The legal issues the court was required to decide included whether it was appropriate to commence the proceeding by way of an originating application and whether the application should be made without notice. The court also needed to determine whether the property should be vested in the current trustees as requested.

The court found it was appropriate to proceed by way of an originating application as the application was uncontentious, all beneficiaries approved the proposal and the proceeding, and the purpose of the sale was to acquire funds for Ms Moran’s care. The court further found it was in the interests of justice to make the application without notice as there were no discretionary beneficiaries and no other persons who should be served as persons who are “interested in, or may be adversely affected by, the relief sought.” The court was satisfied that Ms Moran was under a disability within the meaning of s 52(1)(b)(i) of the Trustee Act and it was appropriate to make an order vesting the property in the current trustees of the Trust.

The court ordered that the property at 34 Magnolia Drive, Blenheim be vested in Joanne Robyn Hunt, Jonel Maree Clemett, and Rebecca Anne Hunt as trustees of the Patricia Moran Trust. The court also granted permission for the proceeding to be commenced by originating application and found the application was appropriately made without notice.

Orders