Matheson Family Trust

[2024] NZHC 2515

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-566

[2024] NZHC 2515

UNDER

the Trustee Act 1956

IN THE MATTER OF

the MATHESON FAMILY TRUST

BETWEEN

CALUM ROBB MATHESON, JIRA SUNTORNJARAYAKUL and

THANANYA SUNTORNJARAYAKUL

Applicants

On the papers:
Counsel:	G S McCardle for Applicants
Judgment:	4 September 2024

JUDGMENT OF GRAU J

[Without notice application for vesting order]

[1]        The trustees of the Matheson Family Trust (the Trust) have made a without notice application for a vesting order pursuant to s 52 of the Trustee Act 1956 vesting the Trust property in the names of the current trustees, Calum Matheson (Calum), Jira Suntornjarayakul (Jira), and Thananya Suntornjarayakul (Thananya). The Trust properties in question are two properties in Paraparaumu (together, the Properties).

[2]       Calum is the settlor of the Trust. He and his parents are the discretionary beneficiaries. The Properties are currently registered in the name of himself, his parents (John and Roberta), and his parents’ solicitor (Mr Eoin Cameron). John and Roberta were removed as trustees on 29 March 2018, and Jira was duly appointed. John passed away in June 2018. Mr Cameron retired as trustee on 19 November 2021, and Thananya was appointed in replacement.

MATHESON FAMILY TRUST [2024] NZHC 2515 [4 September 2024]

[3]       These changes of trustees were not updated on the records of title because Roberta would not sign the Authority and Instruction form to do so. Since then, on 30 January 2024, a certificate of incapacity was issued for Roberta, which records that her incapacity is due to “a late onset Alzheimer’s type dementia”.

[4]       As above, Calum now seeks a vesting order in respect of the Properties to reflect the current trusteeship of the Trust. A vesting order must be made under the former Trustee Act because Roberta and John were removed as trustees prior to the commencement of the Trusts Act 2019 and the divesting and vesting of trust property had not taken effect on the commencement date (see cl 11 of sch 1 of the Trusts Act 2019).

[5]       Given that Roberta was removed as a trustee some time ago and is now incapacitated, I consider that making such a vesting order is appropriate. There is no apparent prejudice to any beneficiaries of the Trust in doing so.

[6]       The application is made without notice on the basis that it affects only the applicants, and counsel has certified that all reasonable enquiries and steps have been made or taken to ensure the application contains all relevant information. I am satisfied it is appropriate to determine the application on a without notice basis.

[7]       Accordingly, I make an order pursuant to s 52 of the Trustee Act 1956 that the following property be vested in Calum Matheson, Jira Suntornjarayakul, and Thananya Suntornjarayakul as trustees of the Matheson Family Trust:

(a)100 Alexander Road, Raumati Beach, Paraparaumu, Record of Title 443143; and

(b)76 Panorama Drive, Paraparaumu, Record of Title 204706.

Grau J

Solicitors:
BMC Lawyers Limited, Paraparaumu