Murdoch v Murdoch

[2019] NZHC 1643

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2019-406-22

[2019] NZHC 1643

UNDER

the Trustee Act 1956

IN THE MATTER

of the L M Harris Family Trust

BETWEEN

LISA MAREE MURDOCH AND LYNDA MARGARET MURDOCH

Applicants

AND

JOHN ROLAND MURDOCH

Respondent

Hearing:	On the papers
Counsel:	J S Marshall for Applicants
Judgment:	12 July 2019

JUDGMENT OF COOKE J

[1]By interlocutory application dated 2 July 2019 the applicants apply for orders:

(a)that the proceeding be commenced by originating application under    r 19.5 of the High Court Rules 2016;

(b)that the application be made without notice to any other party; and

(c)the land with the legal description Lot 4 Deposited Plan 5295 in the Marlborough Land Register contained in Record of Title MB3B/777 is vested in the names of Lisa Maree Murdoch and Lynda Margaret Murdoch as joint tenants.

MURDOCH v MURDOCH [2019] NZHC 1643 [12 July 2019]

[2]        The applications are supported by an affidavit of Lisa Maree Murdoch dated 2 July 2019 and a memorandum of counsel of the same date.

[3]        Applications for vesting orders under the s 58 of the Trustee Act 1956 are routinely made under originating application, and I accordingly grant that application.

[4]        I also accept on the basis of the materials filed that no other party needs to be given notice as the application relates to a routine matter. I note that Ms Murdoch has confirmed that the beneficiaries are unaffected by the application and that no other person is affected. I also accept that a litigation guardian does not need to be appointed for the respondent in the circumstances of this case.

Substantive application

[5]Section 52(1)(b) of the Trustee Act 1956 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; or

…

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.

[6]        This power can be utilised when a former trustee is no longer capable. For example it has been used in the case of an incapacitated trustee when the holder of an enduring power of attorney is not able to execute transfers.1 It has also been exercised when powers of an appointment under the trust deed do not address the situation.2

1      Godfrey v McCormick [2017] NZHC 420; Locker v Browning [2018] NZHC 1127.

2      Public Trust v Daken [2017] NZHC 1285.

Ultimately the issue for the Court is whether ordering the changes to the certificate of title is appropriate in the circumstances of the case.

[7]        The applicant, Ms Lisa Murdoch explains in her affidavit that she is a trustee of the L M Harris Family Trust. She has explained that the respondent, Mr John Murdoch no longer has capacity. She has confirmed this in her own evidence, and also provided a letter from his doctor, Dr Andrea Judd dated 18 June 2019, explaining that he has advanced alzheimers dementia and no longer has capacity. She explains that after he lost capacity, that she, together with the other applicant Ms Lynda Murdoch removed Mr Murdoch as a trustee in accordance with their powers under the trust deed. She annexes the relevant deed of discharge.

[8]        She explains the trustees own the legal property. The property is still in the name of the initial trustees. She is on the title by her married name. The intention is to sell the property. Both she and Ms Lynda Murdoch consent to the application in their personal capacity.  Ms Lynda  Murdoch’s signed consent has been provided.  Ms Lisa Murdoch also confirms that all beneficiaries are unaffected by the application.

[9]In these circumstances I grant the substantive application in the terms sought.

Cooke J

Solicitors:
Gascoigne Wicks, Blenheim for Applicants