Lawrence v Lawrence - [2020] NZHC 1698

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001089

[2020] NZHC 1698

UNDER The Trustee Act 1956

BETWEEN

CHRISTOPHER KARL LAWRENCE and PAUL WARWICK CURRANT

Applicants

AND

CHRISTOPHER KARL LAWRENCE and

PAUL WARWICK CURRENT as trustees of the The Quentin Lawrence Trust and FRANKLIN REX QUENTIN LAWRENCE
as a former trustee of The Quentin Lawrence Trust

Respondents

Hearing: (On the papers)

Counsel:

Andrew Gilchrist for the Applicants

Judgment:

15 July 2020

JUDGMENT OF MOORE J

This judgment was delivered by me on 15 July 2020 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

LAWRENCE & ANOR v LAWRENCE & ORS [2020] NZHC 1698 [15 July 2020]

Introduction

[1] The applicants, who are trustees of The Quentin Lawrence Trust (“the Trust”) seek, by way of without notice originating application, the following orders:

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

(b)dispensing with service of the application on Franklin Rex Quentin Lawrence (“Quentin”); and

(c)there be a vesting order in favour of the applicants.

Background

[2] The background is that Quentin suffers from dementia and was moved to full- time residential care in June 2019.

[3] Before that he lived at 215 Glenbrook Station Road, RD 1, Waiuku (“the property”) with his son Christopher Lawrence (“Christopher”), one of the applicants and a trustee of the Trust. The property was transferred to the Trust in July 1997.

[4] Quentin was removed as a trustee in March this year by reason of his cognitive incapacity. Since that time Christopher and Paul Warwick Curran, who is the other applicant have been the trustees.

[5] The trustees wish to sell the property and use the funds to meet the costs of Quentin’s ongoing care.

[6] When Quentin went into long term care, an application was made to Work and Income New Zealand (“WINZ”) for a subsidy to meet the costs of that care. WINZ declined to pay any subsidy on the grounds that it was reasonable to expect the Trust to provide the necessary funds. As a consequence, Christopher has been meeting those costs but claims it is a financial struggle for him and his family. It is now necessary to sell the property so that the proceeds can be used to meet Quentin’s ongoing care.

[7] The discretionary beneficiaries under the Trust are Quentin and his children (that is Christopher and two other sons). The property is currently in the names of Christopher, Quentin and Mr Curran, ostensibly as trustees.

The application

[8] What is sought is a vesting order, vesting the property in the names of the remaining trustees, being Christopher and Mr Curran, so that the property can be sold at an arm’s length basis to a third party to realise the funds.

[9] Although no agreement for sale and purchase has been entered into, subject to the Court making the vesting order sought, the property will then be marketed for sale.

[10]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lawrence v Lawrence

Details

AGLC: Lawrence v Lawrence [2020] NZHC 1698
Case: [2020] NZHC 1698
Decision Date: 15 July 2020

CaseChat Overview and Summary

The High Court of New Zealand considered an application by Christopher Karl Lawrence and Paul Warwick Curran, who were trustees of the Quentin Lawrence Trust, to sell a property to fund the care of the incapacitated former trustee, Franklin Rex Quentin Lawrence. The applicants sought leave to commence proceedings without notice, dispensing with the requirement to serve notice on Quentin due to his incapacity, and a vesting order to remove Quentin’s name from the property title. The background to the case involved Quentin's placement in full-time residential care due to dementia, the transfer of the property to the Trust in 1997, and the subsequent financial strain on Christopher as he funded Quentin’s care costs after Work and Income New Zealand declined to provide a subsidy.

The court had to determine whether the applicants could proceed without notice, whether Quentin should be served with notice, and whether a vesting order should be granted. The court referenced similar cases and legal principles, concluding that the applicants could proceed without notice as the application was routine, involved no contested issues, and Quentin's incapacity meant that serving him would be futile. The court found no prejudice to Quentin in not serving him, as the sale was intended to benefit him by providing funds for his care. The court also considered the consent of other beneficiaries and found that either they consented or could not be located, thus no further consultation was required.

The court granted the applicants' requests, allowing the proceedings to commence without notice, dispensing with the requirement to serve Quentin, and issuing a vesting order to remove his name from the property title. This decision facilitated the sale of the property to meet the ongoing care costs of Quentin.

Orders