Mason v Stocker - [2022] NZHC 564

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-000066

[2022] NZHC 564

UNDER the Trustee Act 1956

IN THE MATTER

of an application by Lyndall Dianne Mason and Cargill Trustees Limited, as trustees of the A M Stocker Family Trust for a vesting order

BETWEEN

LYNDALL DIANNE MASON and CARGILL TRUSTEES LIMITED as

trustees of the

A M Stocker Family Trust Applicants

AND

ALWYN MARY STOCKER and JULIETTE SARAH EVANS

Persons for whom the Application is about

Hearing: On the papers

Counsel:

C Officer and P Walker for Applicant

Judgment:

24 March 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 24 March 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MASON v STOCKER [2022] NZHC 564 [24 March 2022]

[1]There are applications before the Court:

(a)for leave to commence a proceeding seeking a vesting order1 by way of originating application under Part 19 High Court Rules 2016; and

(b)vesting a property situated at 54 Sydney Street, Invercargill (Identifier SL12A/899, Southland Land Registration District), in the names of Lyndall Dianne Mason and Cargill Trustees Limited as the current trustees of the A M Stocker Family Trust.

The facts

[2] Alwyn Mary Stocker (Alwyn) and Charles Ferguson Stocker (Charles) were a married couple with two children namely, Juliette Sarah Margaret Evans (Juliette) and Lyndall Dianne Mason (Lyndall).

[3] Alwyn and Charles established two trusts called the A M Stocker Family Trust and the C F Stocker Family Trust. Both were established by Deeds of Trust dated 5 March 1993. This application concerns the A M Stocker Family Trust (the Trust).

[4] Alwyn was the settlor of the Trust. The original trustees were Alwyn, Charles and Lyndall. By Deed dated 22 September 1994, Juliette was appointed as an additional trustee of the Trust. The termination date of the Trust was 1 July 2021. Upon termination, the trustees were to hold the trust fund in equal shares for Lyndall and Juliette if they were living (which was the case).

[5] Charles died on 20 February 2007 and Alwyn, Juliette and Lyndall continued as trustees of the Trust until Alwyn retired as a trustee by Deed of Retirement dated 16 January 2015.

[6] Since 2015, Alwyn has lost capacity to manage her own affairs. She has been in residential care since 2016. She was assessed by a medical practitioner in 2016 and again in 2021 and found to be mentally incapable due to dementia.

1 Trustee Act 1956, s 52.

[7] Juliette has also lost capacity to manage her own affairs. She is now subject to an order for the appointment of a property manager under s 31 Protection of Personal and Property Rights Act 1988.

[8] As a result of these developments, Lyndall was left as the only trustee with capacity to administer the Trust. Acting in reliance upon ss 92, 103 and 104 of the Trusts Act 2019 and cl 27…

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 Mason v Stocker

Details

AGLC: Mason v Stocker [2022] NZHC 564
Case: [2022] NZHC 564
Decision Date: 24 March 2022

CaseChat Overview and Summary

The case of Mason v Stocker involved an application by Lyndall Dianne Mason and Cargill Trustees Limited, as trustees of the A M Stocker Family Trust, for a vesting order. This was sought in relation to a property located at 54 Sydney Street, Invercargill. The applicants sought leave to use the originating application process and to vest the property in the names of the current trustees. The legal issues before the court were whether the use of the originating application process was appropriate and whether a vesting order should be made to transfer the property to the new trustees.

The court found that the use of the originating application process was appropriate as the application was straightforward and suitable for summary determination. The court also considered the interests of justice, which included securing a just, speedy, and inexpensive determination of proceedings. The court found that there was no need for particularised pleadings and interlocutory procedures. The court further found that it would be inappropriate and serve no useful purpose to have the application served on Alwyn Mary Stocker and Juliette Sarah Evans as they had both lost capacity to manage their own affairs. The court considered it appropriate to grant the application for leave to proceed by way of an originating application and to dispense with service.

In relation to the vesting order, the court found that the applicants must seek a vesting order under section 52 of the Trustee Act 1956. The court found that the making of a vesting order was appropriate and necessary to ensure the Trust property was vested in the names of the current trustees, who must now wind up the Trust and distribute the assets. The court also found that the making of such an order would benefit Juliette as she was entitled to share equally in the Trust's assets along with Lyndall.

The court granted leave to commence the proceeding by way of an originating application and dispensed with service of the application. The court also granted the application for a vesting order and ordered that the property at 54 Sydney Street, Invercargill, vest in the names of Lyndall Dianne Mason and Cargill Trustees Limited as trustees for the time being of the A M Stocker Family Trust. Leave was reserved to apply for further directions if necessary.

Orders