May v May

[2020] NZHC 3152

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-002164

[2020] NZHC 3152

IN THE MATTER OF

THE MAY PROPERTY TRUST

UNDER

Sections 51 and 52 of the Trustee Act 1956

BETWEEN

MATTHEW KARL MAY

Applicant

AND

STEPHEN MURRAY MAY and ANDREW DAVID CHRISTIE

First Respondents

AND

DOROTHY ANN MAY

Second Respondent

Hearing:	On the papers
Counsel:	D J Rooke for the Applicant
Judgment:	30 November 2020

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 30 November 2020 at 11.00am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Gibbs Mills Livingstone, Auckland David Rooke Law Office, Auckland

MAY v MAY [The May Property Trust] [2020] NZHC 3152 [30 November 2020]

Introduction

[1]                 The applicant, Matthew Karl May, seeks an order vesting the assets of the May Property Trust (the Trust), being a residential property at 2/12 Pigeon Mountain Road, Half Moon Bay, Auckland (the property), that had been occupied by his mother, Dorothy Ann May, until she became incapacitated and moved to a rest home, in himself and his brother, Stephen Murray May, as the continuing trustees of the Trust, and Andrew David Christie, a newly appointed trustee in place of Dorothy May.

[2]                 The applicant seeks leave to commence the proceeding by originating application and an order dispensing with service on the respondents, being Stephen May and Andrew Christie, as first respondents, and Dorothy May, as second respondent.

[3]                 Having regard to the circumstances described below, I am satisfied that it is in the interests of justice that leave should be granted and that service should be dispensed with and order accordingly. I am also satisfied that it is appropriate to make the order sought in the application.

[4]With his affidavit sworn on 7 August 2020, the applicant provides copies of:

(a)A deed dated 17 December 2003 establishing the Trust and appointing his father, Murray Keith May (now deceased), Dorothy May, Stephen May and the applicant as trustees;

(b)The agreement for sale and purchase of the property, dated 10 November 2003, by the May Family Trust and other documents confirming the purchase of the property by the above-named trustees;

(c)An enduring power of attorney dated 26 May 2016 by which Dorothy May appointed the applicant to be her attorney in relation to her property affairs;

(d)A Health Practitioner’s certificate of mental incapacity for enduring power of attorney in relation to property signed by Deborah Waxman,

a general medical practitioner, on 31 July 2019 in which Dr Waxman states that in her opinion, Dorothy May is mentally incapable to manage her own affairs in relation to her property by reason of severe dementia;

(e)A deed dated 23 September 2019 by which the applicant and Stephen May, in accordance with s 43 of the Trustee Act 1956, appointed Andrew Christie as a trustee of the trust in place of Dorothy May as a result of Dorothy May’s incapacity;

(f)A record of title to the property under Identifier 91942 (North Auckland) showing the owners of the property as Dorothy May, Stephen May and the applicant.

[5]                 The applicant has also filed statements of consent to the proposed order signed by Stephen May and Andrew Christie.

[6]                 In a memorandum dated 23 October 2020, Mr Rooke, counsel for the applicant, notes that because of Dorothy May’s incapacity and the appointment of Andrew Christie, the trustees seek to transfer title to the property to the current trustees but are unable to do so without the direction of the Court. Dorothy May’s incapacity means she cannot consent to the transfer. However, the enduring power of attorney held by the applicant does not permit the applicant to transfer Dorothy May’s interest in the property because that interest is not held in Dorothy May’s personal capacity.

[7]                 Having regard to these circumstances, the affidavit sworn by the applicant and the consents signed by the other two trustees, Stephen May and Andrew Christie, I am satisfied, in accordance with s 52 of the Trustee Act, that it is appropriate to vest the property in Stephen May, Andrew Christie and the applicant.

Order

[8]Accordingly, I make the following order:

In accordance with s 52 of the Trustee Act, the Court vests the assets of the May Property Trust, in particular the property at 2/12 Pigeon Mountain Road,

Half Moon Bay, Auckland; Identifier 91942 (North Auckland), in Stephen Murray May, Matthew Karl May and Andrew David Christie.

G J van Bohemen J