McComb v Ewers - [2015] NZHC 3146

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2015-470-181 [2015] NZHC 3146

UNDER Section 52 of the Trustee Act 1956

BETWEEN

LINDA KAYE MCCOMB, NEW ZEALAND TRUSTEE SERVICES LTD AND COLIN RAYMOND EWERS Applicants

AND

JENNIFER MARGARET EWERS Respondent

Hearing: On the Papers

Counsel:

C J Kelly for Applicants

Judgment:

10 December 2015

JUDGMENT OF WHATA J

This judgment was delivered by Justice Whata on
10 December 2015 at 10.00 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:
Garth Mathieson, Mt Maunganui

MCCOMB v EWERS [2015] NZHC 3146 [10 December 2015]

[1] This judgment concerns an application for:

(a) Vesting order under s 52 of the Trustee Act 1956.

(b)Interlocutory application without notice seeking directions as to service and procedure.

Background

[2] The Juvena Trust was established by deed on or about 30 May 1995. Jennifer Margaret Ewers is the sole remaining surviving settler of the trust. She has been medically assessed as mentally incapable because she is not wholly competent to manage her own affairs in relation to her property. She has developed dementia which has worsened, as such that she has difficulty with her memory and
understanding and her judgment is poor.1

[3] The deed of power and appointment and removal was initially given to the settlers and on one of them passing, to the survivor settler. Relevantly clauses 18.3 and 18.4 state:

18.3Death of Survivor: On the death of the survivor of the Settlors the power of appointment of new trustees shall be vested in such person or persons as the survivor may nominate.

18.4Death of Settlors: If at any time there is no person having the power of appointment under Clauses 18.1 and 18.3, then the power of appointment shall be vested in the executors and administrators of the Estate of the Settlor the said RAYMOND GEORGE EWERS.

[4] No other clause deals with mental incompetence of the sole surviving settlor.

The frame

[5] Section 43(1)(f) states:

43 Power of appointing new trustees

(1) Where a trustee (whether original or substituted, and whether appointed by the Court or otherwise)—

1 As set out in Health practitioner’s certificate of mental incapacity executed by Andrew Mark
Wilkinson on 5 October 2015.

(a) Is dead; or

(b) Remains out of New Zealand for the space of 12 months during which no delegation of any trusts, powers, or discretions vested in him as such trustee remains in operation under section 31 of this Act; or

(c) Desires to be discharged from all or any of the trusts or powers reposed in or conferred on him; or

(d) Refuses to act therein; or

(e) Is unfit to act therein; or

(f) Is incapable of so acting; or

(g) Being a corporation, has ceased to carry on business, is in liquidation, or is dissolved, then—

the person nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust, or if there is no such person…

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 McComb v Ewers

Details

AGLC: McComb v Ewers [2015] NZHC 3146
Case: [2015] NZHC 3146
Decision Date: 10 December 2015

CaseChat Overview and Summary

McComb v Ewers [2015] NZHC 3146 involved an application for a vesting order under Section 52 of the Trustee Act 1956, concerning the Juvena Trust established on 30 May 1995. Jennifer Margaret Ewers, the sole remaining settlor, has been assessed as mentally incapable due to dementia. The applicants, Linda Kaye McComb, New Zealand Trustee Services Ltd, and Colin Raymond Ewers, sought to appoint Mr Ewers as an additional trustee due to Ms Ewers' incapacity. The legal issues revolved around the application of Section 43 and Section 52 of the Trustee Act in the context of Ms Ewers' incapacity and the need to vest the title of a property in new trustees.

The court considered whether Ms Ewers was unfit to act and incapable of so acting, whether the continuing trustees had the power to appoint new trustees under Section 43, and whether the property could be vested in the new trustees under Section 52. The applicants argued that Ms Ewers' incapacity necessitated the appointment of new trustees, and that all final beneficiaries approved the vesting. The court was satisfied that Ms Ewers was under a disability for the purposes of Section 52(1)(b)(i) and that all interested parties approved the vesting, or in Ms Ewers' case, were unable to oppose it due to her incapacity.

The court concluded that the proceedings should be conducted in accordance with Part 19 of the High Court Rules, dispensed with service on Ms Ewers, and ordered that the title to the property at 81 Denny Hulme Drive, Mount Maunganui, Tauranga, be vested in the joint names of Linda Kaye McComb, New Zealand Trustee Services Limited, and Colin Raymond Ewers. This decision facilitated the necessary changes in trusteeship to manage the trust effectively.

Orders