Johansen v Johansen

[2018] NZHC 3063

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-335

[2018] NZHC 3063

IN THE MATTER

of the Trustee Act 1956

BETWEEN

MICHAEL ARTHUR JOHANSEN, GAYLE YVONNE SNEDDON, and NWM TRUST MANAGEMENT LIMITED as

Trustees of the JOHANSEN FAMILY TRUST

Applicants

AND

VONNIE DAW JOHANSEN

Respondent

Hearing:	On the papers
Counsel:	G M Spry for the Applicants
Judgment:	23 November 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 23 November 2018 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:………………………….

Solicitors:
Norris Ward McKinnon, Hamilton

JOHANSEN v JOHANSEN [2018] NZHC 3063 [23 November 2018]

Introduction

[1]The applicants apply for orders:

(a)granting leave to commence proceedings by way of originating application;

(b)dispensing with service on the respondent; and

(c)substantive orders vesting a property at 15 Arney Street, Paeroa in them.

[2]        The applicants are the Trustees of the Johansen Family Trust which was settled by Vonnie Johansen (Vonnie). Vonnie is the mother of both the first and second applicants and of a further daughter Karen Ann Smith (Karen).

[3]        On 7 February 2006 Vonnie signed an enduring power of attorney appointing the first and second applicants and Karen as her attorney.

[4]        Vonnie has now become incapacitated. I have reviewed a medical certificate prepared by Dr Anthony Mayne which confirms that she now suffers from dementia and is mentally incapable of managing her own affairs in relation to property matters or personal care and welfare.

[5]        On 14 November 2018 her attorneys exercised the power vested in them under cls 17.1 and 17.3 of the Trust Deed to appoint the second applicant Gayle Sneddon as a trustee in Vonnie’s stead.

[6]        The Trustees now seek an order vesting the Paeroa property in their name so as to bring the registered position into conformity with the identity of the current Trustees. The jurisdiction in that respect is provided by s 52(1)(b)(i) of the Trustee Act 1956 (the Act).

[7]        The discretionary beneficiaries of the trust include Vonnie’s children and grandchildren and Vonnie. The children are the final beneficiaries.

Discussion

[8]        Having reviewed Mr Johansen’s affidavit in support and the memorandum of counsel I am satisfied that it is appropriate to commence the proceeding by way of originating application for the reasons that:

(i)the interests of justice do not require the applicant to proceed by way of particularised pleadings;

(ii)interlocutory steps are not required;

(iii)there is, in reality, no opposing party as the nominal respondent is mentally incapable.

[9]        I also regard it as appropriate to dispense with service on the respondent having regard to the respondent’s mental incapacity and the fact that she cannot be expected therefore to understand the proceedings. I accept in that context there is in fact the prospect that she may become distressed if served.

[10]      In respect of the beneficiaries of the Trust I note the existence of an independent trustee and the fact that, in any event, the proposed orders do not affect the obligations that the trustees have to all beneficiaries or the rights and entitlements that the beneficiaries have in respect of the trustees or the Trust property. Likewise, therefore I consider notice appropriately dispensed with.

[11]      Similarly, I regard the substantive orders as appropriately granted. The vesting of the land is necessary in order that the registered position reflects the identity of current trustees and I am satisfied that Vonnie’s incapacity prevents her from executing the documents otherwise necessary to do so.

[12]      I am satisfied that the jurisdictional requirements of s 52(1)(b)(i) (and associated definition in s 2(2) of the Act are made out.

Result

[13]I grant leave to commence the proceeding by way of originating application.

[14]I dispense with service.

[15]      I make orders vesting the following property in the name of Michael Arthur Johansen, Gayle Yvonne Sneddon and NWM Trust Management Limited as Trustees of the Johansen Family Trust.

Computer Freehold Register Identifier SA176/199 (CFR), being the property located at 15 Arney Street, Paeroa (the Trust Property).

[16]No application for costs is made.

Muir J