Moore v Lucinsky

[2020] NZHC 1415

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-304

[2020] NZHC 1415

BETWEEN

SHARON MAE MOORE, KATRINA LUCINSKY AND MALCOLM DAVID MASON

Applicants

AND

ANITA MAE LUCINSKY

Respondent

Hearing:	On the papers
Appearances:	C Matsis for the Applicants
Judgment:	22 June 2020

JUDGMENT OF COOKE J

[1]By application dated 16 June 2020 the applicants seek the following orders:

(a)Directing that no litigation guardian be appointed for the respondent and dispensing with service on her.

(b)Dispensing of service on the respondent’s son, Warren Barry Lucinsky, and all other beneficiaries of the Barnita Family Trust (the Trust).

[2]        The application is supported by a memorandum of counsel dated 16 June 2020, together with an affidavit of Katrina Lucinsky dated 15 June 2020.

[3]In counsel’s memorandum counsel also advises:

[5]As the Property sale is due to settle on 22 June 2020, counsel respectfully requested that:

MOORE v LUCINSKY [2020] NZHC 1415 [22 June 2020]

5.1     The Court urgently make the directions sought [as to service].

5.2     The Court urgently consider the substantive application for vesting orders and either:

5.2.1Makes those orders on the papers; or

5.2.2Sets this matter down for an urgent hearing.

[4]        The affidavit of Ms Lucinsky confirms that settlement is due today in paragraph [23] of her affidavit.

[5]        The statement of claim dated 16 June 2020 sets out the substantive orders sought:

(a)That the property at 44 Te Horo Beach Road, Te Horo, New Zealand (being Lot 1 on Deposited Plan 367952 as contained in Record of Title 275976) vest in the plaintiffs, Sharon Mae Moore, Katrina Lucinsky and Malcolm David Mason, as trustees of the Barnita Family Trust.

(b)That the legal costs in respect of this proceeding be met out of trust assets.

(c)Such other orders as the Court sees fit.

[6]        In a separate memorandum of counsel of the same date counsel seeks the orders under s 52 of the Trustee Act 1956 on the basis that the respondent is incapacitated by dementia, and should be removed as a trustee of the Trust.

Directions in relation to service/litigation guardian

[7]        There is no difficult in giving the directions as to service, or in relation to there being no need for a litigation guardian. All the relevant beneficiaries of the Trust have provided written consents to the substantive application for the replacement of trustees. In relation to a litigation guardian, for the reasons outlined below I accept that the respondent suffers from dementia and is not able to make her own decisions in relation to her affairs. The affidavit explains that the property that is the subject matter of this application is owned by the Trust. The respondents does not appear to

have been a beneficiary of the Trust, but is simply a trustee. In those circumstances a litigation guardian is not necessary.

Removal and replacement of trustees

[8]Section 52 of the Trustee Act 1956 (the Act) provides:

52       Vesting orders of land

(1)Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

…

(b)where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person—

(i)is under disability;

…

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

…

[9]        Counsel notes that such orders have been made in comparable situations by the Court.1 Having said that, it is not uncommon for trustees to be first removed and replaced under ss 43 and/or 51 of the Act rather than proceeding straight to a vesting order.2

[10]      There are two aspects of the application. The first is the removal of the respondent as a trustee, and the second is the appointment of Malcolm David Mason as a trustee. In terms of the removal of the respondent, I accept that the application should be granted. I have some hesitation about that given that the only evidence in relation to Mrs Anita Lucinsky’s lack of capacity is provided in the form of a copy of a certificate from Dr Nicholaas Lombard of the Otaki Medical Centre dated 23 March

1      Bushett & Others v Bushett [2019] NZHC 3424.

2      See, for example, Bamford v Ives [2020] NZHC 994.

2019. The certificate records that Mrs Lucinsky has progressive dementia that permanently disables her such that she is mentally incapable or lacks the capacity to make decisions about finances, property, personal care and daily activities. As I have observed in other cases it is preferable that such applications be supported by an affidavit from a medical practitioner, rather than relying on a copy of a form completed by a medical practitioner, especially when it is more than a year old.3 But I am prepared to grant the application given not only this evidence, but also because Ms Katrina Lucinsky explains in her affidavit that Mrs Anita Lucinsky was moved into the dementia care unit at Somerset on the Ranges in Levin in March 2019. In addition all the beneficiaries of the trust have provided written consent to the title in the property being vested in the three trustees named in the application.

[11]      The second aspect of the application is for Mr Malcolm Mason to be added as a trustee of the Trust. The evidence discloses that this was the intention of the settlor of the Trust, Mr Barry Lucinsky. A copy of his will has been provided in evidence stating that he appointed Mr Mason as an additional trustee of the Trust, but this intention did not have legal effect. As explained above, all the trustees of the Trust have given their consent to the Trust property being vested in his name. The evidence fairly discloses the prior issues that Mr Mason has had given convictions entered against him in 2011, but the above circumstances persuade me that the order should be made.

[12] For these reasons I grant the application for him to be appointed a trustee of the Trust under s 51 of the Act. I also make the vesting orders under s 52 set out at [5] above. I also make the order in relation to costs referred to in [5](b) above. Given that the orders include an order under s 51, which may not have been expressly sought by the applicant, I reserve leave for the applicant to apply by memoranda to vary the orders made.

Cooke J

3      See Bamford v Ives, above n 2, at [13].

Solicitors:

Gault Mitchell Law, Wellington for the Applicants