Lewis v Lewis - [2021] NZHC 585

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2021-485-129

[2021] NZHC 585

UNDER Part 19 of the High Court Rules 2016

IN THE MATTER OF

an application under section 52 of the Trustee Act 1956

BETWEEN

ROHAN MURRAY LEWIS, AIDAN CAMPBELL JORDAN-LEWIS and MACALISTER MAZENGARB TRUST

COMPANY (2014) LIMITED as trustees of the CAMROC LEWIS TRUST
Applicant

AND

LYNDSAY ELEANOR LEWIS

Respondent

On the papers

Judgment:

22 March 2021

JUDGMENT OF ISAC J

Introduction

[1]This is an application to vest a property owned by a trust into its three trustees.

[2] The application is brought by way of originating application without notice to the respondent, Mrs Lewis, and arises because while Mrs Lewis has been replaced as a trustee of the relevant trust, at the time of her retirement the property was not conveyed into the name of her replacement trustee.

Background

[3]The applicants are the current trustees of the Camroc Lewis Trust (the Trust).

LEWIS, and ORS v LEWIS [2021] NZHC 585 [22 March 2021]

[4] The respondent, Mrs Lewis, is a former trustee of the Trust. She was removed as a trustee on 13 November 2020 due to incapacity and was replaced at the same time by one of her sons, Mr Aidan Jordan-Lewis.1

[5] The Trust owns the property at 5 Gurkha Crescent, Khandallah.2 The applicants as current trustees wish to sell the property and have entered into a sale and purchase agreement to do so. Settlement is due to take place on 30 March 2021 or 10 working days after the title to the property is “updated” (whichever is the earlier). It is as a result of the sale and purchase agreement that the trustees discovered Mrs Lewis’ name remains on the title to the property.

[6] Mrs Lewis was a trustee of the Trust from its settlement in March 2000 up to her retirement last year. The Trust was created as an orthodox family trust for Mrs Lewis and her late husband, as well as for the benefit of her two sons, Rohan and Aidan, who are two of the three applicant trustees.

Leave to use the originating application process and without notice?

[7] The application is brought as an originating application but not as of right under rr 19.2 and 19.3.

[8] High Court rule 19.5 permits the Court to authorise use of the originating application procedure where to do so is in the interests of justice. The interests of justice include securing the just, speedy and inexpensive determination of proceedings.3

1 A deed of removal and appointment of trustee of the Camroc Lewis Trust had the effect of removing Mrs Lewis as a trustee and appointing her son in her place. The deed of removal is not signed by Mrs Lewis who at the time lacked capacity and was, by virtue of clause 7.1 of the Trust Deed for the Camroc Lewis Trust, the only person who held the power under the…

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 Lewis v Lewis

Details

AGLC: Lewis v Lewis [2021] NZHC 585
Case: [2021] NZHC 585
Decision Date: 22 March 2021

CaseChat Overview and Summary

This case arose from an application by the trustees of the Camroc Lewis Trust to vest a property into the names of the trustees. The respondents, Mrs Lindsay Lewis, had been a trustee of the Trust but had been removed due to incapacity. The applicants sought to sell the property and discovered that Mrs Lewis' name was still on the title. Mrs Lewis' name had not been removed from the title at the time of her retirement. The applicants sought leave to use the originating application process and to proceed without notice to Mrs Lewis, given her incapacity. The court granted leave on the basis that the application was straightforward and Mrs Lewis was not likely to oppose it.

The court considered the appropriate legal framework for vesting trust property in the trustees. Under the Trusts Act 2019, divesting and vesting of trust property no longer requires transfer of legal title. However, the transitional provisions applied in this case because Mrs Lewis retired before the new Act came into force. Therefore, the court had to consider the application under section 52(1)(b) of the Trustee Act 1956. The court accepted that an order under that section was appropriate because Mrs Lewis was mentally incapacitated, had ceased to be a trustee, and was unable to consent to a transfer of title.

The court made an order vesting title to the property in the names of the applicants, the current trustees of the Trust. The court also reserved leave to apply for further directions if necessary and made no order as to costs given the circumstances of the case. The court was satisfied that the vesting order was just and appropriate to ensure the trust property was properly vested in the names of the trustees.

Orders