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McPherson v McPherson

McPherson v McPherson

Case [2016] NZHC 332 2 March 2016

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IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2016-412-000023 [2016] NZHC 332

BETWEEN
PETER BOYD MCPHERSON,

FAIRFIELD TRUSTEES LIMITED, NEWTONMORE TRUSTEE LIMITED Plaintiffs

AND

GWENETH MAY MCPHERSON Defendant

Hearing: (Dealt with on the papers)

Counsel:

D Sim for plaintiffs

Judgment:

2 March 2016

JUDGMENT OF GENDALL J

MCPHERSON v MCPHERSON [2016] NZHC 332 [2 March 2016]

[1] This judgment relates to an application filed without notice on 24 February

2016 for:

(a) a vesting order under s 52 Trustee Act 1956; and

(b)leave to commence this proceeding by way of originating application and dispensing with service on and representation of the defendant.

Background

[2] A trust known as the Newtonmore Trust was established by deed on

25 January 2001. The firstnamed plaintiffs, Peter Boyd McPherson (Mr McPherson) and Fairfield Trustees Limited, are the current trustees of the Trust, along with the defendant. The defendant, Gweneth May McPherson (Mrs McPherson) has been a trustee of the Newtonmore Trust since it was originally settled.

[3] The defendant (Mrs McPherson) recently has suffered increasingly poor health and on 24 September 2015 she was declared by her medical practitioner to be no longer capable of making decisions in relation to her own health, safety and wellbeing.

[4] On that aspect, in a report dated 9 February 2016 Mrs McPherson’s doctor, Dr Fons Captijn, who has known and been the defendant’s general practitioner for a little over two and a half years stated:

I have seen her (Mrs McPherson) decline in this period, caused by Alzheimer’s-type dementia, which has gotten to the stage where her cognitive function is very low, unable to write her own name, take care of her normal day to day cares or hold a conversation. She is in no way able to make considered rational decisions because of this.

[5] Two things are clear from this. The first is that the defendant who had developed dementia has found this condition worsened and, as a result, she is no longer able to understand issues on which any decision might be based or the consequences of any decisions she might make. In addition, and secondly, it is clear that she will not recover from this present state of health.

[6] In the deed establishing the Newtonmore Trust, the power of appointment of new trustees was initially given to the firstnamed plaintiff, Mr McPherson. In this regard paragraph 8 of the Trust Deed states:

8. Power of Appointment of New Trustees

8.1The power of appointing any new trustee or trustees shall be vested in and exercisable by the said PETER BOYD McPHERSON and on his death such power shall be vested in and exercisable by the said GWENETH MAY MCPHERSON.

8.2On the death of the said GWENETH MAY MCPHERSON the trustees at that time or any time thereafter shall be entitled to appoint such further trustee or trustees as they deem appropriate.

[7] It seems that no other clause in the Trust Deed deals with issues such as the mental incompetence of a…

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 McPherson v McPherson

Details

AGLC: McPherson v McPherson [2016] NZHC 332
Case: [2016] NZHC 332
Decision Date: 2 March 2016

CaseChat Overview and Summary

McPherson v McPherson involved a dispute over the administration of a trust. The plaintiffs, Peter Boyd McPherson, Fairfield Trustees Limited, and Newtonmore Trustee Limited sought vesting orders under s 52 Trustee Act 1956 to vest a number of properties owned by the Trust in the plaintiffs, leave to commence the proceeding by way of an originating application, and to dispense with service on the defendant, Gweneth May McPherson. Gweneth May McPherson, a trustee of the Newtonmore Trust, had suffered from increasingly poor health and was declared by her medical practitioner to be no longer capable of making decisions in relation to her own health, safety, and wellbeing. The court was required to decide whether to grant the plaintiffs' application to dispense with service on the defendant, whether to grant leave to commence the proceeding by way of an originating application, and whether to grant vesting orders under s 52 Trustee Act 1956.

The court granted the plaintiffs' application to dispense with service on the defendant as it would be pointless given her deteriorating health condition. The court also granted leave to commence the proceeding by way of an originating application and held that no directions need be made with regard to representation of the defendant. The court held that the defendant was under a disability for the purposes of s 52(1)(b)(i) of the Trustee Act 1956 and that the proposed new trustee, Newtonmore Trustee Limited, was an appropriate entity to be appointed as a new trustee to replace the defendant. The court granted the vesting orders sought in this application to ensure trustees could deal with the property in accordance with the Trust Deed.

The court did not make any order for costs and made an order vesting the properties outlined in the Schedule to this judgment in the plaintiffs, Peter Boyd McPherson, Fairfield Trustees Limited, and Newtonmore Trustee Limited.

Orders