Mitchell

[2020] NZHC 1525

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-875

[2020] NZHC 1525

UNDER

the Trustee Act 1956 and the inherent jurisdiction of this Court

FLEUR NINA MITCHELL and ALLAN BROOKE MITCHELL (JUNIOR) as
trustees of the A B Mitchell No. 3 Family Trust (the Remuera Trust)

Applicants

Hearing:	On the papers
Appearances:	R J Thompson for the Applicants
Judgment:	1 July 2020

JUDGMENT OF GAULT J

This judgment was delivered by me on 1 July 2020 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr R J Thompson, Barrister, Auckland

Mr D H Rishworth (applicants’ instructing solicitor), Auckland

R MITCHELL [2020] NZHC 1525 [1 July 2020]

[1]                The applicants, Mrs Mitchell and her son (Mr Mitchell Junior), seek vesting orders to vest property in their names, as the current trustees of the A B Mitchell No. 3 Family Trust (the Remuera Trust).

Background

[2]                Mrs Mitchell and her husband (Mr Mitchell Senior) are the co-settlors, and were the original trustees, of the Remuera Trust.

[3]                Mr Mitchell Senior now suffers from severe and irreversible dementia and lacks capacity. He was removed as a trustee in February 2020 and Mr Mitchell Junior was appointed as a trustee.

[4]                In addition, Mr Alan Towers was the accountant for the family and its businesses, and a trustee of the Remuera Trust. He died on 24 January 2019.

[5]                In February 2020 the applicants successfully applied to this Court for vesting orders in respect of 18 properties owned by the Trust (the first application).1 When they sought to implement those vesting orders, it became apparent they had omitted to include a further two records of title for two properties owned by the Remuera Trust. Accordingly, the applicants seek vesting orders in respect of those two records of title. Vesting orders are needed as Mr Mitchell Senior and Mr Towers remain listed as a registered proprietor on those records of title.

[6]                On 25 June 2020, I granted leave for the proceeding to be commenced by way of originating application and dispensed with service of the proceeding on the beneficiaries of the Remuera Trust.

Should the trust property be vested in Mrs Mitchell and Mr Mitchell Junior?

[7]                Mr Mitchell Senior is no longer a trustee. Neither is Mr Towers. It is appropriate therefore for legal title to follow equitable title. It is expedient to deal with the applicants’ substantive application for vesting orders on the papers now following Mr Thompson’s clarification as to the terms of the order sought as requested in my

1      Re Mitchell [2020] NZHC 260.

minute of 25 June 2020. Given the circumstances, and the need for the continuing trustees to be able to deal with the Remuera Trust property in accordance with their duties, I consider it appropriate to vest the additional properties in the current trustees.

Orders

[8]I make the following orders:

(a)the interest of the Remuera Trust in the following properties:

(i)66 Seddon Street, Raetihi, WN298/143 (Lot 1 DP 5862); and

(ii)56 Seddon Street, Raetihi, WN673/41 (Section 66 Block III Township of Raetihi and Part Section 79 Block III Township of Raetihi);

now registered in  the names of Allan Brooke Mitchell (date of birth  6 April 1945), Fleur Nina Mitchell and Alan Graham Towers be vested in and transferred to Fleur Nina Mitchell and Allan Brooke Mitchell (date of birth 20 February 1985); and

(b)the costs and disbursements incidental to the application as they relate to the Remuera Trust be met by the Remuera Trust funds.

Gault J