MacMillan Family Trust

[2019] NZHC 1995

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1599

[2019] NZHC 1995

UNDER

Part 5 of the Trustee Act 1956

BETWEEN

of the MACMILLAN FAMILY TRUST

Applicant

AND

of an Application of DEANNE TINA MACMILLAN & ALAN GRAHAME

STUART as trustees of the MACMILLAN FAMILY TRUST for order vesting trust property in continuing trustees

Defendant

On the papers:	at Auckland
Judgment:	22 August 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 22 August 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:       Webster Malcolm Law, Warkworth

MACMILLAN FAMILY TRUST (Application for Vesting Order) [2019] NZHC 1995 [22 August 2019]

[1]  The applicants are the trustees of the Macmillan Family Trust (“the Trust”) and seek leave to bring the application by way of originating application, an order dispensing with service, and, substantively, vesting orders under s 52 of the Trustee Act 1956.

[2]The Trust owns three properties:

(a)160 Plunket Avenue, Wiri, Auckland (Title reference: NA82D/385);

(b)property and sections of land at Helena Bay, Northland (Title references: NA110A/480, NA114D/423 and NA128C/794); and

(c)                   266 Boord Crescent, Taupaki, Auckland (Title reference: NA5D/1395. (“the properties”)

[3]                  The application is necessary because the properties are currently vested in Murray Scott Macmillan (“Mr Macmillan”), the settlor and a former trustee of the Trust.

[4]                  Unfortunately, Mr Macmillan is suffering from advanced dementia and no longer has the mental capacity to look after either his own affairs or the affairs of the Trust and this led to his removal as a trustee in December 2017. Despite being removed as a trustee of the Trust, Mr Macmillan remains as a registered proprietor of the properties in the capacity as a trustee of the Trust. An order is accordingly necessary to ensure that the registered owners of the property reflect the current trustees of the Trust, and as Mr Macmillan is unable to execute any documents to remove himself as a registered proprietor of the properties, the present application is required.

[5]                  Having considered the memorandum and evidence filed in support of the application, it is clearly appropriate to make the orders sought. First, I am satisfied that it was appropriate to commence the proceedings by way of originating application. Secondly, as the current trustees are applicants, all beneficiaries have

consented to the application and there is otherwise no purpose in serving Mr Macmillan, it is appropriate to make an order dispensing with service.

[6]                  Having dealt with those preliminary matters, it is clear from the evidence of the applicants, Alan Stuart and Deanne Macmillan, the substantive orders sought should also be made to ensure that the Trust is able to function to look after the interests of the beneficiaries including Mr Macmillan. Therefore, I make the following orders by consent:

(a)leave pursuant to rule 19.5 of the High Court Rules 2016 permitting these proceedings to be commenced by originating application;

(b)an order dispensing with service of the Application pursuant to s 66 of the Trustee Act 1956 on any person;

(c)vesting the following Trust properties jointly in the continuing trustees, Deanne Tina Macmillan and Alan Grahame Stuart:

(i)160    Plunket   Avenue,   Wiri,   Auckland    (Title    reference: NA82D/385);

(ii)land at Helena Bay, Northland (Title references: NA110A/480,

NA114D/423 and NA128C/794); and

(iii)266 Boord Crescent, Kumeu, Auckland (Title reference: NA5D/1395.

Powell J