Lean v Lean - [2017] NZHC 2742

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIŌEA ROHE

CIV-2017-454-73 [2017] NZHC 2742

BETWEEN
MARTIN DUDLEY LEAN

TARARUA TRUSTEES LIMITED Plaintiffs

AND

CHARLOTTE JUNE LEAN Defendant

on the papers

Counsel:

M M Bourke for the Plaintiffs

Judgment:

9 November 2017

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] Martin Lean and Tararua Trustees Ltd (the plaintiffs) are the continuing trustees of the Pamir Family Trust (the Trust). The plaintiffs apply under s 52 of the Trustee Act 1956 (the Act) for an order vesting certain land of the Trust in the plaintiffs as continuing trustees. They also seek an order dispensing with service of the proceeding on the named defendant Mrs Charlotte Lean (Mrs Lean). They invite the Court to make the orders under s 52 of the Act on the papers.

[2] The plaintiffs and Mrs Lean are the registered proprietors of the land owned by the Trust at 39 Gordon Street, Woodville, being Lots 6, 7 and 8 on Deposited Plan
489 (the land in Certificates of Title HBA4/109, HBE3/898 and HBA4/110) and Lot

1 on Deposited Plan 27740 (the land in Certificate of Title HBW4/744) (together

“the land”).

LEAN & TARARUA TRUSTEES LIMITED v LEAN [2017] NZHC 2742 [9 November 2017]

[3] The defendant is a registered proprietor of the land with the plaintiffs because of her former position as a trustee of the Trust. Unfortunately she now suffers from dementia. By deed of retirement dated 25 September 2017, signed by her attorneys on her behalf, Mrs Lean was removed as a trustee of the Trust.

Background

[4] The Trust was constituted by deed dated 27 July 2001 (the deed). Mrs Lean was the settlor.

[5] In the deed, the powers of removal and retirement of trustees are set out in cls

11(d) and 11(e):

(d) The Power of Removal of Trustees shall vest in Charlotte June Lean during her lifetime and after her death or in the event of her mental incapacity as defined in the Property of Personal and Property Rights Act
1988 the power of removal shall vest in such person appointed by Will or
Deed of Nomination by the Settlor or failing such appointment then such
persons as appointed by the executor or trustee of the Settlor’s Will.

(e) If any of the Trustees shall at any time desire to withdraw and be discharged from the trusts of this Deed he or she may do so by notice in writing signed by himself or herself and given to the Settlor and after the death of the Settlor to the remaining Trustees or Trustee who shall thereupon give notice of such resignation to the person or persons other than the Settlor then having the power to appoint additional Trustees and upon giving such notice of the resignation the Trustee so doing shall cease to be a Trustee of this Trust to all intends and purposes except as to the acts and deeds necessary for the proper…

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 Lean v Lean

Details

AGLC: Lean v Lean [2017] NZHC 2742
Case: [2017] NZHC 2742
Decision Date: 9 November 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Martin Dudley Lean and Tararua Trustees Ltd, as the continuing trustees of the Pamir Family Trust, applied for orders vesting certain land of the Trust in themselves and to dispense with service of the proceeding on Charlotte June Lean, a former trustee. Mrs Lean, who suffers from dementia, was removed from her position as a trustee through a deed of retirement signed by her attorneys. The plaintiffs sought orders under section 52 of the Trustee Act 1956 to vest the land in themselves and to dispense with service on Mrs Lean. The court was required to determine whether the plaintiffs were entitled to the vesting orders and if service on Mrs Lean could be dispensed with.

The court found that Mrs Lean was under a disability for the purposes of section 52(1)(b)(i) of the Act, as she was unable to manage her affairs due to her severe dementia. The court was satisfied that the vesting orders were appropriate for the current trustees to deal with the property in accordance with their powers and duties. In relation to the application to dispense with service, the court found that service on Mrs Lean would be pointless, as she was entirely unable to participate in any decision-making regarding the trust, and the proceeding may cause her distress. The court granted leave to dispense with service of the proceeding on Mrs Lean.

The court made the following orders: (a) dispensing with service of the proceeding on Mrs Lean and (b) vesting the land in the current trustees of the Trust, namely Martin Dudley Lean and Tararua Trustees Ltd. The orders were made to give effect to the deed of retirement and ensure the interests of the beneficiaries were not affected.

Orders