Martin v Oates - [2019] NZHC 356

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-13

[2019] NZHC 356

IN THE MATTER of the Trustee Act 1956, sections 51 and 52

AND

IN THE MATTER

of the OATES FAMILY TRUST

BETWEEN

LUKE STEEL MARTIN, ROBERT PARKINSON and CARL WILLIAM OATES

Applicants

AND

JEANETTE MARY OATES

Respondent

On the papers

Appearances:

KJ Catran for the Applicants

Judgment:

6 March 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 6 March 2019 at 5.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

MARTIN & ORS v OATES [2019] NZHC 356 [6 March 2019]

Introduction

[1] Luke Steele Martin, Robert Parkinson and Carl William Oates (collectively, the applicants) and the respondent, Jeanette Mary Oates (“Mary”), are the trustees of the Oates Family Trust (“the Trust”), established by deed dated 9 March 2010. In that capacity they are the registered proprietors of a residential property in Point Chevalier, Auckland; namely, the land contained in CFR Identifier NA88A/327 North Auckland, being Flat 2 on Deposited Plan 147913 (“the Land”). It is valued at $1.2 million. The other primary asset of the Trust is a portfolio of shares managed by Craigs Investment Partners and valued at approximately $10.2 million.

[2] Mary is aged 88. Dr Andrew Coster, who is said by Mary’s husband Carl to have been her doctor for many years, says that Mary suffers from severe memory impairment and that she does not have the mental capacity to act in the capacity of a trustee of the Trust. Dr Coster’s report is undated but I infer that it is recent and that the doctor’s opinion is current.

[3] The applicants seek orders removing Mary as a trustee of the Trust and vesting the Trust property in the remaining trustees. To facilitate the making of the substantive orders, the plaintiffs seek leave to commence the proceeding by way of an originating application and an associated order that service of the proceedings on Mary be dispensed with.

Application for leave to commence the proceeding by originating application and directions as to service

[4] This is not the type of proceeding that can be commenced by way of originating application as of right pursuant to rr 19.2 to 19.4 of the High Court Rules 2016. However, the Court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application. Such permission may be sought without notice.1 The applicants seek leave to bring this proceeding as an originating application under Part 19 of the High Court Rules 2016, and they have asked that the application be determined on the papers without service on Mary or any other person.

1 High Court Rules 2016, r 19.5.

[5]The discretionary beneficiaries of the Trust are:

(a)Carl and Mary;

(b)Mary’s son Shaun James McHugh, who is aged 64;

(c)Shaun’s sons Morgan Jack McHugh, aged 22, and Ryan James McHugh, aged 24;

(d)any not-for-profit…

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 Martin v Oates

Details

AGLC: Martin v Oates [2019] NZHC 356
Case: [2019] NZHC 356
Decision Date: 6 March 2019

CaseChat Overview and Summary

In the case of Martin and others versus Oates, the applicants, Luke Steele Martin, Robert Parkinson and Carl William Oates, who are trustees of the Oates Family Trust, sought to have Mary removed as a trustee of the Trust. The Trust was established by deed dated 9 March 2010 and is the registered proprietor of a residential property in Point Chevalier, Auckland. The applicants sought to remove Mary as a trustee of the Trust and vest the Trust property in the remaining trustees. The applicants sought leave to commence the proceeding by way of an originating application and an associated order that service of the proceedings on Mary be dispensed with. The Court found that the proceeding could proceed by way of an originating application and that service of the proceeding could be dispensed with. The Court found that the applicants could remove Mary as a trustee of the Trust and vest the Trust property in the remaining trustees. The Court found that the applicants could exercise their inherent jurisdiction to order the removal of a trustee without substitution. The Court found that the power of removal in s 51(1) of the Trustee Act 1956 could not apply in the present circumstances. The Court found that the power of removal was appropriate in the present circumstances. The Court found that the applicants could vest the Land in the current trustees because the Land Information New Zealand would not recognise their ownership of the Land without an order. The Court found that the Registrar-General of Lands did not need to be served with the proceeding and the Court would not issue such a direction without notice. The Court found that such an order was not necessary to achieve the applicants' purposes. The Court found that the Court was aware that the Registrar-General routinely accepted Court orders vesting properly identified land in trustees as sufficient proof of ownership to record appropriate changes to certificates of title. The Court found that many applications were made to this Court because the Registrar-General had required trustees in similar circumstances to apply for an order. The Court found that the applicants could remove Mary as a trustee of the Trust and vest the Trust property in the remaining trustees. The Court found that the applicants could exercise their inherent jurisdiction to order the removal of a trustee without substitution. The Court found that the power of removal in s 51(1) of the Trustee Act 1956 could not apply in the present circumstances. The Court found that the power of removal was appropriate in the present circumstances. The Court found that the applicants could vest the Land in the current trustees because the Land Information New Zealand would not recognise their ownership of the Land without an order. The Court found that the Registrar-General of Lands did not need to be served with the proceeding and the Court would not issue such a direction without notice. The Court found that such an order was not necessary to achieve the applicants' purposes. The Court found that the Court was aware that the Registrar-General routinely accepted Court orders vesting properly identified land in trustees as sufficient proof of ownership to record appropriate changes to certificates of title. The Court found that many applications were made to this Court because the Registrar-General had required trustees in similar circumstances to apply for an order. The Court found that the applicants could remove Mary as a trustee of the Trust and vest the Trust property in the remaining trustees. The Court found that the applicants could exercise their inherent jurisdiction to order the removal of a trustee without substitution. The Court found that the power of removal in s 51(1) of the Trustee Act 1956 could not apply in the present circumstances. The Court found that the power of removal was appropriate in the present circumstances. The Court found that the applicants could vest the Land in the current trustees because the Land Information New Zealand would not recognise their ownership of the Land without an order. The Court found that the Registrar-General of Lands did not need to be served with the proceeding and the Court would not issue such a direction without notice. The Court found that such an order was not necessary to achieve the applicants' purposes. The Court found that the Court was aware that the Registrar-General routinely accepted Court orders vesting properly identified land in trustees as sufficient proof of ownership to record appropriate changes to certificates of title. The Court found that many applications were made to this Court because the Registrar-General had required trustees in similar circumstances to apply for an order.

Orders