Masters v Private Planning Company Limited

[2018] NZHC 2200

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2018-470-000123

[2018] NZHC 2200

UNDER

Part 7 and 19 of the High Court Rules and the Trustee Act 1956

IN THE MATTER OF

An application for a Vesting Order in respect of land

BETWEEN

BRIAN GORDON MASTERS and

GAYLEEN ANN MASTERS as trustees of the BG MASTERS FAMILY TRUST

Applicants

AND

PRIVATE PLANNING COMPANY LIMITED

Respondent

Hearing:	On the papers
Judgment:	24 August 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 24 August 2018 at 1.00 pm

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date……………………….

MASTERS v PRIVATE PLANNING COMPANY LTD [2018] NZHC 2200 [24 August 2018]

[1]                   This is an application for leave to commence proceedings by way of an originating application,1 orders dispensing with service of the originating application and directions as to service in relation to a company that has been removed from the Register2 and for the determination of a without notice application.3 The substantive order that is sought is an order under s 52(1)(b)(iv) of the Trustee Act 1956 that trust property be vested in the trustees of the BG Masters Family Trust.

[2]                   The circumstances of the application are set out in an affidavit of Brian Gordon Masters and Gayleen Ann Masters and a memorandum of counsel. In summary, the trust that is the subject of the proceeding was settled in 1997. The original trustees were Brian and Blanche Catherine Masters. The latter retired as a trustee in 2005 and was replaced by Gayleen Masters and a trust company, Private Planning Company Ltd. Private Planning Company Ltd retired as a trustee in May 2017. Brian and Gayleen are the remaining trustees.

[3]                   At the time of Private Planning Company Ltd’s retirement the trust property was to vest or be transferred to Brian and Gayleen Masters as the remaining trustees. Unfortunately, the transfer of the trust property, which is situated at 215B Rangi Avenue, Whangamata, and property situated at 60 Hume Road, Katikati, was not transferred. This was an error.

[4]                   In October 2017, Private Planning Company Ltd ceased trading and was removed from the Company Register. As a result, it is unable to execute the necessary documents to effect the transfer of the properties. There is some urgency about the matter because the trustees have entered into an unconditional agreement for the sale of the Whangamata property which is due for settlement on 30 August 2018.

[5]                   I am satisfied that this is an appropriate case in which to permit the substantive application to be brought by way of an originating application. I am further satisfied that it is appropriate for service to be dispensed with and for the substantive orders

1      High Court Rules, r 19.5.

2      High Court Rules, rr 4.40, 7.22 and 19.10.

3      High Court Rules, r 7.46.

sought to be made. The beneficiaries of the trust, Nicole Masters, Jeremy Masters and Daryn Masters, have provided a written consent to the application.

[6]Accordingly:

(a)Leave is granted to commence proceedings by way of originating application;

(b)Service of the originating application is dispensed with;

(c)The application may be determined on a without notice basis;

(d)The substantive order vesting the trust properties in the trustees is made in the terms of the draft orders filed.

P Courtney J