Jacobs v Pohio

[2016] NZHC 2104

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000375 [2016] NZHC 2104

IN THE MATTER OF

a trust deed dated 21 September 1984

between JAMES NGAHINA POHIO as trustee and AUBREY MANAWA POHIO as settlor

BETWEEN

MERI ATARETA JACOBS Plaintiff

AND

ANASTASIA RAKERA EVELYN POHIO

Defendant

Hearing:	29 August 2016
Appearances:	G D Jones for the Plaintiff No appearance for the Defendant
Judgment:	6 September 2016

JUDGMENT OF NATION J

[1]      The Aubrey Pohio Trust was established by a deed dated 21 September 1984 between James Ngahina Pohio as trustee and Aubrey Manawa Pohio as the settlor. The plaintiff (Meri Jacobs) is the sister of James Pohio (now deceased) and Aubrey Pohio.

[2]      The major asset of the trust is land at 16 Church Bush Road, Tuahiwi.  It is currently rented to tenants and yields a rental income of approximately $120 per week.

[3]      Aubrey is now almost 91 years old.  He has been diagnosed with dementia and is not able to make decisions regarding his own health and welfare.  Under the

terms of the trust deed, Aubrey is the sole beneficiary during his lifetime.  After his

JACOBS v POHIO [2016] NZHC 2104 [6 September 2016]

death, the children or grandchildren of James Pohio are discretionary beneficiaries

or, failing any appointment from that class such as Aubrey’s nephews as survive him.

[4]      Meri  Jacobs  is  the  property  manager  and  litigation  guardian  of Aubrey Manawa Pohio, pursuant to an order of the Family Court at Christchurch made under the Protection of Personal and Property Rights Act 1988 on 5 March 2015.

[5]      James Pohio died in August 1993.  The trusteeship has passed down to the defendant, Anastasia Rakera Evelyn Pohio.  The immediate past trustee who is still living is Alana Te Ata Whuia Pitama.

[6]      Between 16 April 2013 and 5 March 2015, the defendant, as trustee, had possession and control of the trust fund.  During that time she stole approximately

$15,755 from the trust fund and applied it to her own use.

[7]      In or about December 2015, the defendant was convicted of theft by a person in a special relationship, contrary to ss 220 and 223 of the Crimes Act 1961, in respect of the thefts from the trust fund.

[8]      On 18 March 2016, the defendant was sentenced to a term of five months’ home detention plus 150 hours’ community work and ordered to repay $15,755 to the trust.

[9]      Meri  Jacobs  seeks  an  order,  pursuant  to  s  51  of  the  Trustee Act  1956, appointing her trustee of the Aubrey Pohio Trust in substitution for the defendant, and consequential orders as to the vesting of trust land and as to costs.

[10]     In  accordance  with  the  directions  for  service  issued  by Associate  Judge

Matthews on 7 June 2016, the proceedings were served on the defendant on 25 June

2016.   They were also served on Ms Pitama as the immediate past trustee.   Her counsel has filed a memorandum with the Court confirming she has no objection or opposition to the orders sought.  The defendant has taken no steps in relation to the proceedings.

[11]     In  bringing these proceedings,  Meri  Jacobs  has  demonstrated  that  she  is willing and able to accept the responsibility of being a trustee.  The fact the Family Court has appointed her as Aubrey Pohio’s property manager further confirms she is an appropriate person to have that responsibility.   Through having stolen money from the trust, the defendant has demonstrated that she is not fit to remain as a trustee.

[12]     Meri Jacobs seeks an order that her costs and expenses in relation to the bringing of these proceedings and registration of the consequential vesting order be paid out of the trust fund.  These proceedings have been brought for the benefit of the present and future beneficiaries of the trust.  Meri Jacobs has no financial interest in the trust and has not stood to benefit personally from the making of this application.  I am satisfied it is appropriate to make the order as to costs which she seeks.

[13]     After  James  Pohio’s  death,  his  widow,  Waverley  Dorinda  Pohio,  as  his executor, appointed herself as trustee of the trust and vested the trust fund in herself. Waverley Pohio died on or about 25 December 2012.  Although Alana Pitama was appointed as executor of the estate of Waverley Dorinda Pohio and purported to appoint the defendant as trustee of the Aubrey Pohio Trust, no steps were taken to give effect to these appointments on the title to the trust land.  It is appropriate that an order be made vesting title to the trust land in the person who is now being appointed as trustee.

[14]     Mr Jones, for Meri Jacobs, also sought an order that the defendant pay Meri Jacobs’ costs in bringing these proceedings, in effect so as to reimburse the Aubrey Pohio Trust for the costs it has or will incur as a result of Meri Jacobs having to bring these proceedings because of the defendant’s theft of trust monies.   The defendant has been ordered to pay to the trust by way of reparation the amount she was convicted of stealing from it.  I was told she was paying that reparation by way of modest periodic instalments and is probably receiving a benefit.  The defendant was also not given express notice in the documents that were served on her that Meri Jacobs would be seeking an order for costs against her.

[15]     In  the  circumstances,  it  is  unlikely  an  order  requiring  the  defendant  to reimburse the trust for further costs would be of any tangible benefit.  I do not make that order.

[16]     Accordingly, pursuant to ss 51(1), (2)(a) and (b) of the Trustee Act 1956, I make an order appointing Meri Atareta Jacobs of Kaiapoi, company director, as trustee of the Aubrey Pohio Trust, established by a deed of trust dated 21 September

1984, in substitution for Anastasia Rakera Evelyn Pohio.

[17]     Pursuant to s 52(2), I make an order vesting the estate in fee simple, currently held in the name of Waverley Dorinda Pohio in respect of land at 16 Church Bush Road, Tuahiwi, being section 119B1 of the Kaiapoi Maori Reserve 873 containing approximately 2023 square metres and described in computer freehold register identifier CB763/18, in Meri Atareka Jacobs of Kaiapoi, company director, as trustee of the Aubrey Pohio Trust.

[18]     Pursuant to s 71 of the Trustee Act, I make an order that Meri Jacobs’ costs and expenses of and incidental to these proceedings, and to the order vesting title to the trust land in her, be paid out of the trust fund or the income obtained from that fund.

Solicitors:

Pegasus Bay Law Ltd, Christchurch