Jones v Jones

[2019] NZHC 3402

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-134

[2019] NZHC 3402

IN THE MATTER

of the Trustee Act 1956

AND

IN THE MATTER

of the Shirley Jones Family Trust

BETWEEN

SCOTT LEIGHTON JONES and DONALD

ARTHUR ROBERTS as trustees of the Shirley Jones Family Trust

Applicants

AND

SHIRLEY ANN JONES

Respondent

Hearing:	18 December 2019 (On the papers)
Counsel:	M R Walker and B B Gresson for the Applicants
Judgment:	18 December 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 18 December 2019 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 18 December 2019

JONES v JONES [2019] NZHC 3402 [18 December 2019]

[1]    The parties are the present trustees of the Shirley Jones Family Trust (“the Trust”).

[2]    Donald Arthur Roberts has been a trustee since the Trust was created by a Deed dated 17 November 1992. Scott Leighton Jones (“Scott”) and Shirley Ann Jones (“Shirley”) have been trustees since 15 October 2004 they were appointed in place of a retiring trustee.

[3]    In this application, the applicants seek that Shirley be removed as a trustee and that a Trust asset, a property at Wanaka, be vested in the applicants as continuing trustees of the Trust.

[4]    The application is necessary as unfortunately Shirley now lacks capacity. There is a medical assessment produced in an affidavit from Shirley’s doctor confirming that Shirley is not wholly competent to manage her own affairs because she has advancing dementia which is unlikely to improve. In short, Shirley is no longer competent to manage herself and her property and thus cannot be a trustee.

Use of the originating application procedure

[5]    Applications such as this are now routinely made by way of originating application. It is appropriate that a cost effective and practical procedure be adopted in a case such as this, and leave is granted for the originating application procedure to be used.

Litigation guardian

[6]    As Shirley is incapacitated, r 4.30 of the High Court Rules 2016 requires her to have a litigation guardian unless the Court decides otherwise. I am satisfied that in this case, it is unnecessary to appoint a litigation guardian. Such would serve no real purpose given the nature of this application and Shirley’s capacity.

[7]    Accordingly, there is an order dispensing with the appointment of litigation guardian.

Service

[8]    Similarly, there is no need for any party to be served. The orders sought do not change any of the beneficiaries’ rights and do not affect the obligations which the trustees have to all beneficiaries or entitlements that beneficiaries have in respect of the Trust or Trust property.1

[9]    Accordingly, there is an order dispensing with the need for the application to be served.

Removal of a trustee

[10]   The application to remove Shirley is made pursuant to the Court’s inherent jurisdiction to remove and appoint trustees.2 The Court has an inherent supervisory jurisdiction to ensure that the terms of a trust are carried out.3 The jurisdiction derives from the Court’s powers in equity to supervise trusts for the welfare of beneficiaries. This inherent jurisdiction permits the Court to make an order removing trustees where the step is necessary in order to protect the interests of beneficiaries.

[11]   Given Shirley is unfortunately unable to perform her responsibilities as trustee, I am satisfied that it is in the best interests of the Trust to remove Shirley as trustee. Ensuring that the Trust is capable of operating is necessary to protect the interests of the beneficiaries and I make an order removing Shirley Ann Jones as a trustee of the Trust.

Vesting order

[12]   With an order made removing Shirley as trustee it is necessary and appropriate that there be a vesting order in respect of the Trust property pursuant to s 52 of the Trustee Act 1952.

[13]   Accordingly, there is an order that the property at 7 Hyland Street, Wanaka, contained in Record of Title 75632 being an estate in fee simple and being Lot 30 on

1      Independent Trustee Company Ltd v Hazledine [2019] NZHC 2581 at [5].

2      Powell v Powell [2015] NZCA 133 [2015] NZAR 1886 at [47].

3      Kite v Hodge [2014] NZHC 3025 (2014) 3 NZTR 24-024 at [40].

Deposited Plan 319220, Otago Land Registration District, is vested in Scott Leighton Jones and Donald Arthur Roberts as trustees of the Shirley Jones Family Trust.

Costs

[14]No order for costs is sought and so none is made.

Associate Judge Lester

Solicitors:

Todd & Walker Law, Queenstown