McConchie v McConchie

[2018] NZHC 2870

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000695

[2018] NZHC 2870

UNDER

the Trustee Act 1956

IN THE MATTER

of an application for Removal and Appointment of a Trustee

BETWEEN

MONICA HELEN MCCONCHIE and INGRID ROBYN TAYLOR

Applicants

AND

HUGH GORDON MCCONCHIE

Respondent

Hearing:	On the papers
Judgment:	6 November 2018

JUDGMENT OF NATION J

[1]    The applicants are two of the trustees of the McConchie Family Trust. The respondent is a third trustee. The evidence establishes that he has dementia, is incapacitated and will not recover to a point where he is able to continue to act as trustee.

[2]    The applicants have applied by originating application for an order removing the respondent as a trustee of the trust, and appointing Ms Marie Mann, a daughter of the first named applicant and the respondent, as a trustee in his place. The order is required to enable the family to sell the home formerly occupied by the respondent and his wife.

MCCONCHIE v MCCONCHIE [2018] NZHC 2870 [6 November 2018]

[3]    On 13 September 2017, Associate Judge Matthews made orders granting leave for the proceedings to commence by way of originating application. He also directed the proceedings be served on the four adult children of Mr and Mrs McConchie, but dispensed with the need for proceedings to be served on grandchildren or for the proceedings to be served on the respondent or for a litigation guardian to be appointed to represent him.

[4]    Affidavits were filed on 26 October 2018 confirming that service had been effected as directed. Marie Mann also swore an affidavit dated 24 August 2018 confirming there had been no change to her father’s condition.

[5]    In these circumstances, it is appropriate to make the orders as sought. I according make orders:

(a)        the abovenamed respondent be removed as a trustee of the McConchie Family Trust;

(b)        Marie Mann, of Broadbeach Waters, Queensland, Australia be appointed as a trustee of the trust;

(c)        the land owned by the trustees of the trust, being the land in title identifier 538315, Lot 84, DP 437360, vest in Monica Helen McConchie, Ingrid Robyn Taylor and Marie Mann; and

(d)        the applicants reasonable costs incidental to this application are to be paid from the assets of the McConchie Family Trust.

Solicitors:

Taylor Shaw, Christchurch