Martelli v Vause - [2018] NZHC 82

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-00105 [2018] NZHC 82

BETWEEN
GARY STUART MARTELLI

Applicant

AND

CLIFFORD VAUSE AND JILLIAN LESLEY VAUSE

Respondents

Hearing: On the papers

Counsel:

W A Endean for Applicant

Judgment:

9 February 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 9 February 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Dawsons, Auckland

MARTELLI v VAUSE [2018] NZHC 82 [9 February 2018]

of trustees and vesting orders. There is also an application for appointment of a litigation guardian. By minute dated 1 February 2018, I indicated that I was prepared to grant the application for removal and appointment of trustees and vesting orders. However, I was not, at that stage, willing to appoint Toni, the defendants’ daughter, as a litigation guardian on a without notice basis. I convened a telephone conference at which Mr Endean, solicitor for the applicants, appeared. At that conference, I confirmed that I was prepared to grant the removal and appointment of trustees and vesting orders without notice. But I was not prepared to make an order as to litigation guardianship without the application being served on Toni’s sister, Michelle. My full reasons now follow.

Background

[2] Clifford Vause and Jillian Lesley Vause are mentally incapable of managing their affairs. Dr Christopher Raymond Peter Beer and Dr Jonathan McPherson attest to the fact that Mr and Mrs Vause suffer with dementia and that they are unable and incapable of understanding the issues subject to the present proceedings.

[3] It is proposed that they be removed as trustees from the C Vause Family Trust and JL Vause Family Trust and to replace them with Gary Stuart Martelli and Gerald Alfred Clark. Mr Martelli was appointed their attorney under enduring powers of attorney dated 27 September 1998. Mr Clark’s relationship to Mr and Mrs Vause is not described in the material supporting the application. Mr Endean advises, however, that Mr Clark is a longstanding friend of Mr and Mrs Vause.

[4] Late last year a decision was made to sell the home belonging to Mr and Mrs Vause at 67 Bramley Drive. Mr Martelli exercised his power of attorney to affect a sale but is unable to complete the transfer. The date of settlement is 28 February 2018.

[5] The evidence also shows that Mr and Mrs Vause have two children, Toni aged

47 and Michelle aged 44. Toni became estranged from her parents about 15 years’ ago and was excluded as a beneficiary of the Trusts in 2002 by deeds made on the 10th day of May 2002. However, in April 2017, Toni became reconciled with her parents

Martelli and Mr Clark being appointed as trustees of the Trusts. There is, however, no mention of Michelle’s position. Mr Endean quite properly advised me that he had spoken to Michelle about the present proceedings and had got the impression…

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 Martelli v Vause

Details

AGLC: Martelli v Vause [2018] NZHC 82
Case: [2018] NZHC 82
Decision Date: 9 February 2018

CaseChat Overview and Summary

In Martelli v Vause, the applicants, Gary Martelli and Gerald Clark, sought to have Clifford and Jillian Vause removed as trustees of two trusts and to be appointed in their place. The application also sought vesting orders and the appointment of a litigation guardian. The applicants argued that the trustees were mentally incapable of managing their affairs due to dementia, and the sale of the family home required their removal. The application was made on the basis that Martelli held enduring powers of attorney for the trustees.

The court was required to determine whether the trustees were incapable of managing their affairs, whether the applicants were suitable replacements, and whether a litigation guardian was necessary. The court found that the evidence of incapacity was clear and that Martelli and Clark were suitable to replace the trustees as they had longstanding relationships with the trustees. However, the court found that a litigation guardian was not necessary as Martelli already held power of attorney, and the application for a guardian was adjourned until the daughter of the trustees, Michelle, had been formally served with the application.

The court granted the orders for substitution and vesting, but adjourned the application for a litigation guardian until Michelle had been formally served with the application. If the application for a litigation guardian was not pursued, the court noted that the substitution orders may make the application redundant.

Orders