Lane v Creed

[2018] NZHC 2431

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-53

[2018] NZHC 2431

UNDER

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

IN THE MATTER

of an application for removal of an

incapacitated trustee and vesting of land in a new trustee in the estate of Andrew James Stiffe

BETWEEN

ROBERT ALAN LANE

Applicant

AND

DENNIS EDWARD CREED

Respondent

Counsel:	G W Allan for Applicant
Judgment:	14 September 2018

JUDGMENT OF GRICE J

(Retirement of trustee and appointment of Sian Rhiannon Holden as trustee)

[1]                  Mr Creed and Mr Lane were both partners in Pitt and Moore. They were the executors and trustees of the estate of Andrew James Stiffe who died on 19 September 2008.

[2]                  This is an application in which Mr Creed is being replaced by the new trustee a present partner of the firm, Sian Rhiannon Holden.

[3]                  Mr Creed retired from legal practice in February 2013 and subsequently lost his mental capacity.

ROBERT ALAN LANE v DENNIS EDWARD CREED [2018] NZHC 2431 [14 September 2018]

[4]                  Mr Stiffe’s estate had advanced funds to his mother, Mrs Stiffe, to repay debt on a jointly owned property. That debt from the estate was secured by a mortgage, the mortgagees being Mr Lane and Mr Creed as the executors and trustees of the deceased’s estate. Mrs Stiffe is suffering ill-health and it may be that her present property will need to be sold and a more suitable property for her care purchased or alternatively the property may need to be sold to meet rest home care costs.

[5]                  The order for the appointment of Ms Holden is therefore being sought in anticipation.

[6]                  Mr Creed’s incapacity is evidenced in the affidavit of Lorna Jan Double who annexed a copy of a medical certificate certifying Mr Creed’s incapacity. An affidavit was also filed by Mr Lane in support of the application confirming the position and noting that Mr Creed had retired from practice in 2013 and had been a permanent resident of a dementia care facility since 2014. He also confirms that Ms Holden is a partner at Pitt and Moore.

[7]                  I am satisfied that the appointment of Ms Holden as trustee is appropriate, upon the retirement of Mr Creed in the circumstances.1

[8]Accordingly, I make the following orders:

(a)That this application be dealt with under Part 19 of the High Court Rules;

(b)An order dispensing with service of this application on the respondent;

(c)An order that the interest of Dennis Edward Creed and Robert Alan Lane in mortgage number: 8757398.3 (Nelson Registry) be vested in Robert Alan Lane and Sian Rhiannon Holden.

1      Trustee Act 1956, ss 52(b)(i) and 52(3).

Grice J

Solicitors:

Pitt and Moore, Nelson