Lu v Beckenridge

[2015] NZHC 2549

IN THE HIGH COURT OF NEW ZEALAND

INVERCARGILL REGISTRY

CIV-2015-425-000055

[2015] NZHC 2549

IN THE MATTER OF

the Ozprey Trust under s 51 of the Trustees Act 1956

BETWEEN

FIONA LU

Plaintiff

AND

JOHN ROBERT BECKENRIDGE

First Defendant

AND

ULF ROGER HENRICSON

Second Defendant

Appearances:

J N P Young for Plaintiff

G P Traves as representative of the First Defendant U R Henricson (Second Defendant) in person

Judgment:

16 October 2015

(Determined on the papers)

JUDGMENT OF ASSOCIATE JUDGE OSBORNE (BY CONSENT)

Introduction

[1]                 In this proceeding, the plaintiff (Ms Lu) seeks a Court order appointing Public Trust as the trustee for the Ozprey Trust in substitution for the existing trustees, the first (Mr Beckenridge) and the second defendant (Mr Henricson).

Background

[2]                 Mr Beckenridge and Ms Lu were married in 2007. Ms Lu has one son whom Ms Lu and Mr Beckenridge parented together during their marriage. They lived together at a property at Lake Hayes, Queenstown (the property). Ms Lu and Mr Beckenridge separated around April/May 2013. Ms Lu subsequently obtained a

LU v BECKENRIDGE [2015] NZHC 2549 [16 October 2015]

parenting order providing her with day-to-day care of her son. In apparent breach of the parenting order, Mr Beckenridge uplifted his step-son and there have been no confirmed sightings of either Mr Beckenridge or his step-son since mid-March 2015. There is a suspicion that Mr Beckenridge has committed murder/suicide.

[3]                 The property is owned by the defendants as trustees of the Ozprey Trust (the trust).

[4]                 Ms Lu is unaware of the terms of the trust deed but believes that her son may be a beneficiary. Mr Henricson sent an email to Ms Lu’s solicitors – his email  asserts that Ms Lu’s son has now been excluded as a beneficiary. But a document which Mr Henricson attached merely purports to be the front page of a “Deed of Exclusion” – it contains no evidence of execution or operative provisions such as might establish an effective exclusion.

[5]                 Ms Lu is making a claim in the Family Court against the trust pursuant to the Property (Relationships) Act 1976.

[6]                 Since Mr Beckenridge went missing in March 2015, no-one has been in occupation of the property.

[7]                 Ms Lu understands that a bank loan secured by a mortgage over the property is in arrears and that other outgoings in relation to the property are in arrears. She states that the property is not let and is unkempt.

Representation

[8]                 Mr Henricson represents himself in the proceeding. He has consented to the order sought by the plaintiff.

[9]                 Mr Beckenridge is represented in the proceeding by Public Trust, the Public Trust having been appointed to represent Mr Beckenridge.¹ Public Trust, through Mr Traves, has joined in a memorandum of consent to the order sought by the plaintiff.

1    Lu v Beckenridge [2015] NZHC 1551.

Appointment of a new trustee – the jurisdiction

[10]The plaintiff applies for an order under s 51 Trustee Act 1956.

[11]Section 51(1) of the Act provides:

51       Power of court to appoint new trustees

(1)The court may,  whenever it is expedient to appoint a new trustee or   new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

Discussion

[12]            It has transpired that the defendants (in the case of Mr Beckenridge through the Public Trust as his representative) have now consented to their removal as trustees and their replacement by Public Trust.

[13]            Even in the absence of consent, the Court would have found it expedient in the circumstances of this case to appoint a new trustee. Given the circumstances of Mr Beckenridge’s disappearance, the need for a Court order is evident.

Order

[14]I order by consent:

(a)Public Trust is appointed the new trustee of the Ozprey Trust in substitution for the first and second defendants;

(b)Public Trust is authorised to complete and to sign the requisite Land Information New Zealand authority and instruction forms authorising the transfer of any land currently in the names of the first and second defendants (as trustees of the Ozprey Trust) to Public Trust;

(c)The plaintiff is entitled to the costs and disbursements of this proceeding, to be paid from the assets of the Ozprey Trust, and I direct

that the costs be fixed on a 2B basis together with disbursements to be fixed by the Registrar.

Observation

[15]            Mr Henricson has had to deal with these matters from a distance. I thank him for the expeditious and responsible way in which he has cooperated in reaching this sensible outcome.

[16]            I congratulate the parties and counsel generally for the efficient resolution of the difficulty which confronted them.

Associate Judge Osborne

Solicitors:

Preston Russell Law, Invercargill. Public Trust, Lower Hutt

Copy to: U R Henricson