Laing v Young

[2019] NZHC 2602

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA MĀWHERA ROHE

CIV-2019-418-000030

[2019] NZHC 2602

UNDER

the Trustee Act 1956

BETWEEN

JAMES ALAN LAING and GRAHAM ALLAN HEAPHY

Plaintiffs/Applicants

AND

HELEN JOAN YOUNG

Defendant/Respondent

Hearing:	(Determined on the papers)
Counsel:	M W Gomas for Plaintiffs/Applicants
Judgment:	14 October 2019

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me at 2.30 pm on 14 October 2019 pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
M W Gomas, Barrister & Solicitor, Westport

LAING v YOUNG [2019] NZHC 2602

[1]                The Heaphy Family Trust was created by a Deed of Trust dated 25 October 1994. Isla May Heaphy (Isla) was the settlor of the Trust. The applicant, James Alan Laing, and Helen Joan Young (Helen) were the original trustees. The final beneficiaries of the Trust are Isla’s children.

[2]                Helen has advanced Alzheimer’s disease and was removed as a trustee on 17 June 2019, pursuant to s 43(1)(f) of the Trustee Act 1955. In her place, the applicant, Graham Allan Heaphy, was appointed a trustee.

[3]                Isla has died, and the Trust is to be wound up. This cannot be achieved until a vesting order is made transferring the Trust’s property at 6 Rochfort Place, Westport to the present trustees. Helen is unable to transfer the property into the names of the trustees due to her condition.

[4]The applicants have sought orders:

(a)For leave to bring this proceeding by originating application;

(b)Dispensing with service on Helen;

(c)Dispensing with the appointment of a litigation guardian in respect of Helen under r 4.30 High Court Rules;

(d)Dispensing with service of the proceeding on any other person; and

(e)Vesting the Trust’s property at 6 Rochfort Place, Westport in the trustees.

Discussion

[5]                It is established that applications of this type may be commenced by way of originating application. I see no reason why this would not be appropriate here and leave is granted accordingly.

[6]                The evidence satisfies me that Helen is suffering from a serious disease of the mind, that this will not improve and that no purpose will be served appointing a litigation guardian to represent her. The application concerns a matter of

administration only and simply gives effect to what has already been done in the removal of Helen as a trustee.

[7]                The orders sought do not alter or otherwise affect the rights of the beneficiaries. In any event, all the beneficiaries’ consent to the making of the orders sought. The only exception to this is Helen, who is unable to give her consent due to her condition. No purpose will be advanced by requiring service upon Helen. I dispense with service of the application upon her. No other person has any interest in the Trust that would require service of this application upon them.

[8]                It follows from the above, that an order should be made vesting the property of the Trust in the applicants as trustees of the Heaphy Family Trust.1

Orders

[9]I make the following orders:

(a)I grant leave for this proceeding to be brought by way of originating application;

(b)I dispense with the appointment of a litigation guardian in respect of Helen Joan Young and dispense with service of this application upon her or upon any other person;

(c)There shall be an Order, pursuant to s 52 of the Trustee Act 1956, that the property situated at 6 Rochfort Place, Westport (described as Lot 7 deposited plan 16843 unique identifier NL 11A/453) is vested in the applicants; and

1      Docherty v Docherty [2013] NZHC 1885.

(d)The applicants’ costs and disbursements of this application are to be paid

from the assets of the Heaphy Family Trust.

O G Paulsen Associate Judge