Locker v Browning - [2018] NZHC 1127

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-000347

[2018] NZHC 1127

UNDER the Trustee Act 1956

IN THE MATTER OF

an application for vesting orders and an order varying the Trust Deed of the

Elaine Browning Family Trust

BETWEEN

MARK HARRY LOCKER, MAVIS JEAN SIMS AND TIMOTHY RONALD

LOCKER
Applicants

AND

ELAINE JOAN BROWNING

Respondent

Hearing: On the papers

Counsel:

L Jensen-McCloy for Applicants

Judgment:

18 May 2018

JUDGMENT OF COOKE J

[1] The applicants are the trustees of the Elaine Browning Family Trust (the Trust), which was settled by the respondent on 1 March 1995. They have applied for orders vesting property owned by the former trustees in the present trustees, including a property at 1 Marine Parade, Ōtaki, and for orders that the Deed of Trust be varied. They also apply for orders to commence these proceedings by originating application and for directions as to service and representation. A series of affidavits have been filed by the applicants in support of the application, together with a memorandum of counsel providing reasoned submissions in support of the applications.

LOCKER v BROWNING [2018] NZHC 1127 [18 May 2018]

[2] I am satisfied that this proceeding is appropriately bought as an originating application, that service on the respondent or any other party is not required, and that for the reasons addressed below there is no need for the appointment of a litigation guardian. Those applications are accordingly granted.

[3] As a matter of substance, the applications are made because Mrs Browning has advanced dementia and is no longer able to make decisions in relation to the property. Although steps have been taken to replace her as trustee, and one of her daughters holds an enduring power of attorney, it is necessary for orders to be made under s 52 of the Trustee Act 1956 (the Act) in order to vest title to land owned by the Trust in the new trustee, as the appointment of a replacement trustee does not have that automatic effect.

Factual background

[4] Affidavits were filed by three of the respondents’ children, Timothy Locker, Mark Locker and Rachel McKee, and from a friend of the respondent, Jean Sims. Messrs Timothy and Mark Locker and Mrs Sims are the present trustees of the Trust.

[5] Mrs Browning settled the Trust on 1 March 1995 pursuant to a Trust Deed. She was a trustee along with her son, Mark. Mrs Sims was later appointed trustee on 21 October 1997. The Trust’s assets include:

(a)an occupation licence for Flat 5B of the Grosvenor Apartments (19 Cottleville Terrace, Thorndon) together with 8,400 shares in Grosvenor Flats Ltd; and

(b)a property at 1 Marine Parade, Ōtaki contained in Certificate of Title WNC4/1063.

[6] Prior to owning the apartment, the Trust owned previous residential properties occupied by Mrs Browning. The primary beneficiaries of the Trust are Mrs Browning’s three children, but there are wider eligible beneficiaries. All of the current trustees and…

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 Locker v Browning

Details

AGLC: Locker v Browning [2018] NZHC 1127
Case: [2018] NZHC 1127
Decision Date: 18 May 2018

CaseChat Overview and Summary

In the case of Locker v Browning, the applicants, who were the trustees of the Elaine Browning Family Trust, applied to the High Court of New Zealand for vesting orders and an order varying the Trust Deed. The Trust was settled by Elaine Browning on 1 March 1995, and the applicants sought orders to vest property owned by the former trustees in the present trustees, as well as orders to vary the Trust Deed. The primary legal issues were whether the court should grant the vesting orders and whether the court should grant the order varying the Trust Deed. The court held that the vesting orders should be granted and the variation order should not be granted. The court reasoned that the vesting orders were necessary as the appointment of a replacement trustee did not have the automatic effect of vesting title to the land owned by the Trust in the new trustee. However, the court declined to grant the order varying the Trust Deed, as there was no pressing need for that order, and there may be some doubt as to whether clauses of the kind suggested by the applicants are effective. The court also noted that the area was the subject to a specific proposal for reform in the Trusts Bill 2017. The court made an order under s 52 of the Trustee Act 1956 that the interest in land in Certificate of Title WNC4/1063 in relation to 1 Marine Parade, Ōtaki be vested in the present trustees. The court also directed that the applicants have leave to apply with respect to any further orders required under s 52 if they affect any registered interests relating to the Grosvenor Apartment at 19 Cottleville Terrace. The court declined the application to vary the Trust.

Orders