Jamieson
[2020] NZHC 942
•8 May 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2020-412-27
[2020] NZHC 942
UNDER Section 52 of the Trustee Act 1956 IN THE MATTER
of an application for an order vesting land in the trustees of the Estate of James Stuart Jamieson
BETWEEN
BRYAN STUART JAMIESON AND RAYMOND PETER JAMIESON in their
capacities as trustees of the Estate of James Stuart Jamieson
Applicants
Hearing: 8 May 2020
(On the papers)
Counsel:
A D P Boock for the Applicants
Judgment:
8 May 2020
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 8 May 2020 at 12pm Pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar 8 May 2020
RE JAMIESON [2020] NZHC 942.
[1] The applicants are two of the four sons of the late James Stuart Jamieson and Gretta Mary Jamieson. James died in December 2007. He and Gretta owned a property at Loudon Street, Green Island, Dunedin (the Loudon Street property) where, until recently, Gretta resided.
[2] The record of title of the property is currently held as tenants in common in equal shares by Gretta as to a one-half share and Gretta and Bryan Stuart as trustees of James’ Estate as to a one-half share.
[3] Unfortunately, Gretta had to leave the Loudon Street property because her health had deteriorated to the stage that she is no longer able to safely live alone in the home and she moved into a residential care centre in Mosgiel.
[4] A letter is produced from Dr Johnston of the Mosgiel Health Centre which states the doctor’s belief is that Gretta is not able to make any meaningful decisions about her finances or about her own welfare. He endorses the activation of an enduring power of attorney that Gretta had given to the applicants.
[5] The Loudon Street property was placed on the market and sold at auction. It was in the course of organising the settlement of the sale of the Louden Street property that it was realised that Gretta’s presence on the title and her lack of capacity presented difficulties in settlement.
[6] While the enduring power of attorney could be used to complete the transfer documentation in relation to the half-share in Gretta’s own name, it could not be used in respect of the half-share that she held as a trustee.
[7] Accordingly, because of Gretta’s lack of capacity, she has been replaced as a trustee of James’ Estate by Raymond Peter Jamieson. That was achieved under s 43 of the Trustee Act 1956 (“the Act”).
[8] However, the removal of Gretta from the Trust that holds the Estate’s half-share, will not without more, deal with the issue of Gretta’s name still being on
the title. For that reason, the applicants seek a vesting order under s 52 of the Act that the Estate’s half-share be vested in the applicants.
Procedural steps
[9]An application such as this raises a number of procedural steps:
(a)firstly, the applicants seek that the proceeding will be dealt with by way of an originating application;
(b)while not expressly raised in the application, the question of whether a litigation guardian should be appointed for Gretta, needs to be addressed;
(c)issues of service need to be addressed and that is tied up with the preceding question; and
(d)whether the vesting order is appropriate.
Use of originating application procedure
[10] Applications for a vesting order, such as this, are now routinely made by way of an originating application. Vesting order applications have been characterised as administrative in nature and that is often the case. In straightforward uncontested applications such as this, it is appropriate that a cost-effective and practical procedure be adopted.
[11]Accordingly, leave is granted for the originating application to be used.
Litigation guardian
[12] As Gretta is incapacitated, r 4.30 of the High Court Rules 2016, requires her to have a litigation guardian unless the Court directs otherwise.
[13] I am satisfied that in this case it is unnecessary to appoint a litigation guardian. Such would serve no real purpose given the administrative nature of this application.
In all likelihood serving Gretta and attempting to explain what the Court papers were about would only cause her unnecessary distress.
[14] Accordingly, there is an order dispensing with the appointment of a litigation guardian and with service of the proceedings on Gretta.
Service on any other party
[15] Similarly, there is no need for any other party to be served. The application is necessary to allow the Trust to function again. The applicants and their two brothers, Neil and Trevor, are the capital beneficiaries of their father’s Estate, Gretta having been left a life interest in James’ half-share. Both Trevor and Neil have (along with Raymond Peter Jamieson), filed affidavits consenting to the present application.
[16] James’ Will contemplated that upon the sale of the property, Gretta would enjoy the net income of the value of James’ half-share. Her rights in that regard are not altered by this application.
[17] Given the consents filed and that Gretta’s interests are not changed by the application, there is an order dispensing with the need for the application to be served.
Vesting order
[18] The substantive order sought is a vesting order in respect of the Estate’s half-share. Given what I have said, such an order is appropriate. The fact is the applicants are committed to a sale and that needs to be seen through. Gretta has left the property and sale of the Louden Street property is sensible in the circumstances.
[19] Accordingly, there is an order vesting a one-half share in the property at 3 Loudon Street, Green Island, Dunedin being more particularly described as to land contained in Record of Title OT291/212, Land Registration District of Otago and being Lot 1, Deposited Plan 5213 into the names of:
(a)Gretta Mary Jamieson as to a ½ share
(b)Bryan Stuart Jamieson and Raymond Peter Jamieson as to a ½ share as Executors.
Associate Judge Lester
Solicitors:
Solomons, Dunedin
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