Lipscombe v Lipscombe

[2014] NZHC 3340

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3256 [2014] NZHC 3340

UNDER

Part 18 of the High Court  Rules and s 52

of the Trustee Act 1956

IN THE MATTER

of an application for vesting of land in remaining trustees

BETWEEN

ANTHONY JAMES LIPSCOMBE AND ANNE GENEVIEVE LIPSCOMBE Plaintiffs

AND

ROSS ANTHONY LIPSCOMBE Defendant

Hearing:	On the papers
Counsel:	T J Herbert for Applicant
Judgment:	19 December 2014

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 19 December 2014 at 3pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Ulrich Milne Lawyers, Auckland.

TJ Herbett, Auckland.

LIPSCOMBE v LIPSCOMBE [2014] NZHC 3340 [19 December 2014]

[1]      This is a without notice application for orders that:

(a)      the  service  on  the  respondent  of  this  application  and  all  other documents  filed in  the proceeding by the applicants  be dispensed with;

(b)this application and the relief sought by the statement of claim be dealt with on the basis of the applicants’ evidence in this application, being the affidavit of Anthony James Lipscombe, and on the papers before the Court; and

(c)       the costs of this application be met from the funds of the Trust.

[2]      The applicants, Anthony James Lipscombe and Ann Genevieve Lipscombe, who are the trustees of the Lipscombe Family Trust, seek orders that:

(a)      an order that the property described as an estate in fee simple in respect of Lot 19 Deposited Plan 61576, being the interest described in Certificate of Title NZ18A/218 North Auckland Land Registration District be vested in Anthony James Lipscombe and Anne Genevieve Lipscombe, the plaintiffs; and

(b)      an order that the costs of this proceeding be met from the funds of the

Trust.

[3]      When the Trust was established it had three trustees, the applicants and the respondent, Ross Anthony Lipscombe.  Sadly, Mr R A Lipscombe has subsequently been certified as mentally incapable for the purposes of the Protection of Personal and Property Rights Act 1988.  He suffers from dementia.  He has been removed as a trustee by Ann Genevieve Lipscombe, who came to hold the power of appointment for the Trust as a result of Mr R A Lipscombe’s incapacity.  Mr R A Lipscombe is the father of A J Lipscombe and the husband of Ms A G Lipscombe.

[4]      There is a property at 28 Fairway Drive, Mt Roskill Auckland, which is one of the assets of the Trust.   It is currently registered in the names of A J, G L and

R A Lipscombe.     Subsequent  to  the  removal  of  R  A  Lipscombe,  A  J  and

A G Lipscombe have agreed to sell the property.

[5]      In order to effect the sale which is due to settle on 12 February 2015, they require a vesting order under s 52 of the Trustee Act 1956, transferring the title into their names only.

[6]      I am satisfied that this is an appropriate case for service to be dispensed with. I accept that there are no other persons interested in the outcome and I am in a position to deal with the application on the papers.

[7]      I am also satisfied that this application and the relief sought can be dealt with on the basis of A J Lipscombe’s affidavit and on the papers before the Court.   I record that the affidavit of A J Lipscombe complies with r 18.9 of the High Court Rules.

[8]      I am satisfied that under s 52 of the Trustee Act 1956, it is appropriate to make an order in terms of paragraph (a) in the prayer for relief in the statement of claim, and for the order for costs at (b).

Result

[9]      There will be orders in accordance with [1] and [8] above.

……………………………..

Asher J