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…

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 Moore v Lucinsky

Details

AGLC: Moore v Lucinsky [2020] NZHC 1415
Case: [2020] NZHC 1415
Decision Date: 22 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Moore v Lucinsky was heard, concerning an application for orders regarding the vesting of property and the appointment of trustees for the Barnita Family Trust. The applicants, Sharon Mae Moore, Katrina Lucinsky, and Malcolm David Mason, sought various orders including the vesting of property in their names as trustees, and the removal of Anita Mae Lucinsky as a trustee due to her incapacity. The applicants also sought to dispense with the need to appoint a litigation guardian for Anita Mae Lucinsky.

The legal issues before the Court involved the interpretation and application of the Trustee Act 1956, specifically sections 51 and 52, which deal with the removal and replacement of trustees, and the vesting of land or interests therein. The Court needed to determine whether Anita Mae Lucinsky's dementia rendered her incapable of managing her affairs, and whether the applicants were entitled to have the property vested in their names as trustees, as well as whether Malcolm David Mason should be appointed as a trustee.

The Court found that Anita Mae Lucinsky suffered from progressive dementia, rendering her incapable of making decisions about her finances, property, and personal care. The Court accepted that a litigation guardian was not necessary since Anita Mae Lucinsky was not a beneficiary of the Trust but merely a trustee. The Court granted the application to remove Anita Mae Lucinsky as a trustee and to appoint Malcolm David Mason as a trustee, based on the evidence provided, including the settlor's will and the consent of all Trust beneficiaries. The Court also made vesting orders to transfer the property to the named trustees and ordered that legal costs be met out of Trust assets.

In conclusion, the Court granted the application for the vesting of property in the names of the applicants as trustees, removed Anita Mae Lucinsky as a trustee due to her incapacity, and appointed Malcolm David Mason as a trustee. The Court also ordered that legal costs be met out of Trust assets.

Orders