Lloyd & Associates Limited v Harcourt

[2020] NZHC 552

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-000025

[2020] NZHC 552

UNDER

The Trustee Act 1956, ss 43 and 52

BETWEEN

LLOYD & ASSOCIATES LIMITED and FL TRUSTEES 2019 LIMITED

Applicants

AND

ANNE PAULINE HARCOURT

Respondent

Hearing:	On the papers
Counsel:	M H Leaf for the Applicants
Judgment:	18 March 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 18 March 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Fenton McFadden, Te Puke Counsel: Megan Leaf, Barrister, Te Puke,

LLOYD & ASSOCIATES LTD & ANOR v HARCOURT [2020] NZHC 552 [18 March 2020]

[1]        The applicants seek orders:

(a)For leave to bring this proceeding as an originating application;

(b)Dispensing with the need for the respondent to have a litigation guardian;

(c)Otherwise dispensing with service;

(d)Removing the respondent as a trustee;

(e)Vesting certain real estate in the two remaining trustees under s 52 of the Trustee Act 1956.

[2]        The applicants are two of the existing trustees of the Bushy Creek Trust established by the respondent on 29 September 2008. The applicants seek the removal of the respondent and existing third trustee, Anne Pauline Harcourt, and the vesting of the property held by the Trust in the names of the remaining trustees.

[3]        The Trust owns property at 15 Schrieber Road and 81 Ohinepanea Road. The application is supported by an affidavit from Nicholas Mark Kirkland, a director of one of applicants, FL Trustees 2019 Limited.

[4]        The evidence discloses that Ms Harcourt has developed dementia, which has worsened, such that she has difficulty with her memory and understanding, and her judgment is poor. She is suspicious of people she knows well and is reluctant to accept help. She lacks the ability and motivation to manage her finances, having poor arithmetic and understanding of financial affairs. She is currently in secure dementia care at Metlifecare in Papamoa. A power of attorney for her property and for personal care and welfare has been activated.

[5]        The current application is supported by all five of the final beneficiaries, who are the respondent’s children and who are all adults aged between 44 and 51.

[6]        Rule 7.46(3) enables the Court to determine applications without notice if the Judge is satisfied that the matter is a routine matter.

[7]        Under s 52 of the Trustee Act 1956, the Court has power to make vesting orders of land in certain circumstances. Section 52 reads:

52 Vesting orders of land

(1)Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

(a)where the court appoints or has appointed a trustee of any land or interest therein, or where a trustee of any land or interest therein has been appointed out of court under any statutory or express power:

(b)where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person—

(i)is under disability; or

(ii)is out of the jurisdiction of the court; or

(iii)cannot be found; or

(iv)being a corporation, has ceased to carry on business or is in liquidation or has been dissolved:

(c)where it is uncertain who was the survivor of 2 or more trustees jointly entitled to or possessed of any interest in land:

(d)where it is uncertain whether the last trustee known to have been entitled to or possessed of any interest in land is alive or dead:

(e)where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land:

(f)where a deceased person was entitled to or possessed of any interest in land and his personal representative is under disability:

(g)where a trustee jointly or solely entitled to or possessed of any interest in land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or interest or a release of the right, to convey the land or interest or to release the right, and has wilfully refused or neglected to convey the land or interest or release the right for 28 days after the date of the requirement:

(h)where land or any interest therein is vested in a trustee whether by way of mortgage or otherwise, and it appears to the court to be expedient—

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

(2)Where any such order is consequential on the appointment of a trustee, the land or interest therein shall be vested for such estate as the court may direct in the persons who on the appointment are the trustees.

(3)Where any such order relates to a trustee entitled or formerly entitled jointly with another person, and that trustee is under disability or out of the jurisdiction of the court or cannot be found, or (being a corporation) has ceased to carry on business or is in liquidation or has been dissolved, the land, interest, or right shall be vested in the other person who remains entitled, either alone or with any other person that the court may appoint.

[8]        On the basis of the evidence before the Court, I am satisfied it is appropriate that the orders sought be made. The respondent is under a disability and is unable to conduct the Trust affairs. There is no purpose in serving her with the application. The interests of justice support the making of the orders sought.

[9]There will accordingly be orders:

(a)Granting leave to bring the proceeding as an originating application;

(b)Dispensing with the need for the respondent to have a litigation guardian;

(c)Dispensing with service on the respondent or any other person;

(d)Removing the respondent as a trustee of the Bushy Creek Trust; and

(e)Vesting the Trust property in the applicants under s 52 of the Trustee Act 1956.

Woolford J