Liston Trustees Services Limited v Kohlhase - [2015] NZHC 1961

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1838 [2015] NZHC 1961

IN THE MATTER
of the Trustee Act 1956 and the inherent

jurisdiction of the High Court to supervise trusts

IN THE MATTER

the Roy Kohlhase Family Trust, the Elizabeth Kohlhase Family Trust and R&E Kohlhase Family Trust

BETWEEN

LISTON TRUSTEE SERVICES LIMITED, JENNIFER MARY MCGILL AND DONALD WILLIAM MCMORLAND AS TRUSTEES OF THE ROY KOHLHASE FAMILY TRUST,

THE ELIZABETH KOHLHASE FAMILY TRUST AND R&E KOHLHASE

FAMILY TRUST Plaintiff

AND

ELIZABETH ALMA KOHLHASE Defendant

Hearing: On the papers

Date:

18 August 2015

JUDGMENT OF THOMAS J

This judgment was delivered by me on 18 August 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

LISTON TRUSTEE SERVICES LIMITED, MCGILL AND MCMORLAND AS TRUSTEES OF THE ROY KOHLHASE FAMILY TRUST, THE ELIZABETH KOHLHASE FAMILY TRUST AND R&E KOHLHASE FAMILY TRUST v KOHLHASE [2015] NZHC 1961 [18 August 2015]

[1] The plaintiffs, Liston Trustee Services Ltd, Ms Jennifer McGill and Mr Donald McMorland, are trustees of the Roy Kohlhase Family Trust, the Elizabeth Kohlhase Family Trust and the R & E Kohlhase Family Trust (the Trusts).

[2] They have applied for a vesting order under s 52 of the Trustee Act 1956 to vest the properties owned by the Trusts (the Trust property) in the plaintiffs as current trustees. This order is required because the Trust property needs to be sold to provide an income for the monthly costs of care for the defendant, Mrs Kohlhase, at the Aranui Home & Hospital.

[3] The trustees of the Roy Kohlhase Family Trust and Elizabeth Kohlhase Family Trust jointly own two residential properties at Ocean Beach Road, Mount Maunganui, described as Lot 1 and Lot 2 Deposited Plan 333269 comprised in certificate of title 136477 and 136478. The trustees of the R & E Kohlhase Family Trust own a property at Silverton Avenue, Glen Innes, described as Lot 163
Deposited Plan 41243 comprised in certificate of title NA1902/72.

[4] The R & E Kohlhase Family Trust was established by deed on 4 December

2007. Mr and Mrs Kohlhase were settlors of the Trust and they requested Liston Trustee Services Ltd to act alongside them as trustee. On 11 December 2007, Mr Kohlhase exercised his powers under cl 13(a) of the Roy Kohlhase Family Trust1 and Mrs Kohlhase exercised her power under cl 13(a) of the Elizabeth Kohlhase Family Trust2 to appoint Liston Trustee Services Ltd as a trustee of both trusts.

[5] Mr Kohlhase died on 5 May 2013. Following Mr Kohlhase’s death, Mrs Kohlhase and Liston Trustee Services Ltd were the remaining trustees of the Trusts. Mrs Kohlhase ceased to be a trustee on 4 March 20133 because she was declared incapable of managing her property affairs. Thus Liston Trustee Services Ltd
became the only continuing and capable trustee of the Trusts.

1 Mr Kohlhase is the settlor in the Deed of Trust.
2 Mrs Kohlhase is the settlor in the Deed of Trust.

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.

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Details

Case: [2015] NZHC 1961
Decision Date: 18 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Liston Trustee Services Limited, Jennifer Mary McGill and Donald William McMorland as Trustees of the Roy Kohlhase Family Trust, the Elizabeth Kohlhase Family Trust and R&E Kohlhase Family Trust versus Elizabeth Alma Kohlhase was heard and decided. The plaintiffs sought a vesting order to transfer the properties owned by the trusts into their possession as trustees, in order to sell the properties and provide an income for the monthly care costs of Mrs Kohlhase at Aranui Home & Hospital. The defendants did not oppose the proceedings.

The court needed to decide whether it was appropriate to make the vesting order requested by the plaintiffs. The court considered the facts that Mrs Kohlhase was declared incapable of managing her property affairs, Mr Kohlhase had passed away, and the trusts' deeds required more than one trustee. The court also considered that the trustees had appointed new trustees to comply with the trusts' deeds, but the certificates of title still showed the original trustees. The court concluded that the vesting orders were appropriate to enable proper management of the trust properties.

The court made the vesting orders sought by the plaintiffs. The properties at Ocean Beach Road, Mount Maunganui and Silverton Avenue, Glen Innes were vested in the plaintiffs as trustees. The costs of the application were to be paid from the trust funds. The court also dispensed with service of the application on Mrs Kohlhase as it would serve "no useful purpose" in the circumstances of the case.

Orders