Jeffrey

[2018] NZHC 1326

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA
KIRIKIRIROA ROHE

CIV-2018-419-000048

[2018] NZHC 1326

UNDER

Part 19 of the High Court Rules and Section 52 of the Trustee Act 1956

IN THE MATTER

of an application for land held in trust to be vested in the Applicants as continuing

trustees

BETWEEN

DOUGLAS WAYNE JEFFREY of

Hamilton, Butcher

AND

CARLA HIRANI JEFFREY of Palmerston North, Librarian

Both as trustees of the Jeffrey Doherty Family Trust

The Applicants

Hearing:	6 June 2018
Appearances:	L M Wadsworth for the Applicants
Judgment:	7 June 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on 19 June 2018 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:

Grayson Clements Limited, Hamilton

APPLICATION FOR VESTING ORDER – JEFFREY & ORS [2018] NZHC 1326 [7 June 2018]

[1]    Wayne Jeffrey and Carla Jeffrey as the trustees of the Jeffrey Doherty Family Trust (“the Trust”) have applied to vest the trust property at 43A Dinsdale Road, Hamilton in themselves as trustees of the Trust.

[2]    The application is necessary because the Trust property is currently vested in not only Mr Jeffrey and his daughter Carla, but also in his other daughter, Kathleen, who was previously also a trustee. Following a disagreement between the then trustees in 2017 Mr Jeffrey exercised his power, pursuant to clause 13 of the Trust Deed, to remove Kathleen as a trustee. Although Kathleen is no longer a trustee she remains however one of the registered owners of the Dinsdale Road property. As a result the current trustees are unable to deal with the Dinsdale Road property, and in particular to sell the property in order to purchase a “smaller, economical replacement property for the Trust”.

[3]    Having considered the application carefully, and in particular reviewing the affidavit of Mr Jeffrey and Carla Jeffrey filed in support of the application, I am satisfied the order should be made as sought. The memoranda filed in support of the application do not identify which part of s 52 of the Trustee Act 1956 authorises the order, and at first glance it would appear that the present application does not fall neatly within any of the cases set out in s 52(1) of the Act, where, as here, a trustee has been removed and vesting of the property in the remaining trustees is sought. When faced with identical issues, this Court has however previously concluded that s 52(1)(h), together with the Court’s inherent jurisdiction provides jurisdiction for the orders sought.1

[4]    In this case no basis for opposing the orders have been identified. Kathleen has been served with the application and has sought clarification from the Trust’s solicitors as to the reasons for the application but has taken no steps to oppose the order sought. As she is no longer a trustee there is no reason for her to remain as an owner of the Trust property, or to otherwise obstruct the remaining trustees’ ability to deal with that property, and I therefore adopt the approach previously taken by this Court in similar situations.

1      In Re Fergusson [2014] NZHC 2343 and Beaven v Rea [2016] NZHC 518.

[5]As a result I make the following orders in terms of the draft order filed:

(a)The interests of Douglas Wayne Jeffrey, Carla Hirani Jeffrey, and Kathleen May Jeffrey, in the property at 43A Dinsdale Road, Hamilton (identifier SA45B/646, South Auckland Registry, as being Lot 4 Deposited Plan 22996) be vested in Douglas Wayne  Jeffrey  and Carla Hirani Jeffrey, as trustees of the Trust;

(b)There is no order regarding costs.

Powell J