Lu v Beckenridge

[2015] NZHC 1551

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2015-425-00055 [2015] NZHC 1551

IN THE MATTER OF

of the Ozprey Trust under s 51 of the

Trustee Act 1956

BETWEEN

FIONA LU Plaintiff

AND

JOHN ROBERT BECKENRIDGE First Defendant

ULF ROGER HENRICSON Second Defendant

Hearing:	2 July 2015
Counsel:	J N P Young and S Nicol for Plaintiff/Applicant No appearance for Defendants
Judgment:	3 July 2015

JUDGMENT (NO 2) OF ASSOCIATE JUDGE OSBORNE

as to substituted service and representation

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 second defendant (Mr Henricson).

The interlocutory applications

[2]      Ms Lu initially made application for orders for substituted service upon both defendants and abridgement of the time for defence.   In an earlier judgment I identified difficulties with those applications and invited counsel to reformulate their

application, which has now been done.

LU v BECKENRIDGE [2015] NZHC 1551 [3 July 2015]

[3]      Ms Lu now applies without notice for the following orders:

(a)       an order appointing Public Trust to represent Mr Beckenridge in the proceeding;

(b)an order for substituted service of the statement of claim and any other proceedings upon Mr Henricson.

[4]      The earlier application for abridgement of the time for defence has been withdrawn.

Background

[5]      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 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.

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

[7]      Ms Lu is unaware of the terms of the trust deed but believes that her son may be a beneficiary.  Mr Henricson has recently 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.

[8]      Ms Lu is making a claim in the Family Court against the trust pursuant to the

Property (Relationships) Act 1976.

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

[10]     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.

This proceeding

[11]     The substantive relief which Ms Lu seeks is an order under s 51 Trustee Act

1956 appointing Public Trust as trustee of the trust in substitution for the defendants. Public Trust has conditionally consented to such appointment.

Representation of Mr Beckenridge

[12]     Having   regard   to   the   unusual   circumstances   of   Mr   Beckenridge’s disappearance, the most appropriate course is to appoint someone to represent Mr Beckenridge in his trustee capacity.

[13]     Section 75(1) Public Trust Act 2001 (the Act) provides that a person or entity may appoint Public Trust as (amongst other things) a trustee.

[14]     Section 75(5) of the Act defines “person or entity” to include any court or

Judge.

[15]     Section 75(2)(f) of the Act provides:

(2)      Without limiting the generality of subsection (1), Public Trust may, if it consents, be appointed—

…

(f)       to represent any party in any proceedings, or any person or class of persons interested in the proceedings, on the appointment or direction of a court.

[16]     In relation to the present interlocutory application, I am asked to invoke the power under s 75(2)(f) of the Act.  Counsel has been unable to refer me to any earlier

case in which the power has been invoked in similar circumstances. On any view, the present circumstances make such a representation order appropriate.

[17]     Public   Trust   has   provided   a   written   consent   to   its   appointment   as representative of Mr Beckenridge.  Subject to the Court’s ordering that the costs of such representation are to be paid from or to be a charge on the assets of the Ozprey Trust, of which Mr Beckenridge and Mr Henricson are the current trustees.   The condition sought is entirely appropriate.  It is analogous to the default position under r 4.45 High Court Rules whereby a litigation guardian is entitled to be reimbursed out of the property of the incapacitated person for costs incurred by the litigation guardian on behalf of the incapacitated person.  To the extent that reimbursement is not expressly provided for in s 75(2) of the Act, the Court must dispose of this case

by analogy to other rules.1

[18]     I will grant the order sought.

[19]     It will then be for the plaintiff to serve Public Trust in accordance with the

Rules.

Service – Mr Henricson

[20]     Lisa Maloney, a legal executive employed by the plaintiff’s solicitors, has provided the relevant evidence in support of an application for substituted service upon Mr Henricson.  I am satisfied, having regard to the evidence of Ms Maloney, that reasonable efforts have been made to locate the precise whereabouts of Mr Henricson, without success, and that he cannot be promptly served.

[21]     Ms Maloney’s very recent email exchanges with Mr Henricson indicate that the directions which I will make as to substituted service represent the method of service most likely to bring the documents to the attention of Mr Henricson.

Orders

[22]      I order:

1      High Court Rules, r 1.6(1).

(a)       Public Trust is appointed to represent in this proceeding John Robert

Beckenridge in his capacity as trustee of the Ozprey Trust.

(b)Public Trust, in so representing Mr Beckenridge, shall be entitled to recovery of its costs to be paid from the assets of the Ozprey Trust.

(c)       Personal  service of the  proceedings  upon  Ulf  Roger  Henricson  is dispensed with.

(d)Service  upon  Ulf  Roger  Henricson  will  be  deemed  to  have  been effected upon the completion of the latter of the following two events:

(i)The proceedings, together with a copy of this judgment, are emailed to

[emailaddress] ;

and

(ii)the proceedings, together with a copy of this judgment, and together with a covering letter requesting Mr Wilson to bring the documents to the attention of Ulf Roger Henricson, are served on Philip Wilson, solicitor, of Invercargill;

(e)       The costs of the interlocutory application are fixed on a 2B basis and are to, together with disbursements, to be costs in the cause.

Case management conference

[23]     I convene a case management conference for 12 noon, 18 August 2015 (by telephone) (Associate Judge Osborne).

[24]     The primary purpose of the conference is to ascertain what, if any, steps have been taken in the proceeding by the defendants (including Public Trust as representative of Mr Beckenridge).  Any party wishing to be joined in the telephone

conference is to notify the Registrar at least one week before the conference of the telephone details for connection.

[25]     In the event no defence has been filed within the period prescribed by the Rules, leave is reserved to counsel for the plaintiff to earlier file a Memorandum requesting the immediate listing of the proceeding for formal proof hearing.

Associate Judge Osborne

Solicitors:

Preston Russell Law, Invercargill