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…

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 Murdoch v Murdoch

Details

AGLC: Murdoch v Murdoch [2019] NZHC 1643
Case: [2019] NZHC 1643
Decision Date: 12 July 2019

CaseChat Overview and Summary

The High Court of New Zealand heard an interlocutory application by Lisa Maree Murdoch and Lynda Margaret Murdoch against John Roland Murdoch regarding the vesting of certain land in the Marlborough Land Register. The applicants sought orders to vest the land in their names as joint tenants. They argued that John Roland Murdoch, who was a former trustee of the L M Harris Family Trust, had lost capacity due to advanced Alzheimer's dementia and could no longer act as a trustee. The applicants provided a doctor's letter confirming the incapacity of John Roland Murdoch. The applicants further argued that all beneficiaries of the trust were unaffected by the application and that no other party needed to be notified.

The legal issue before the Court was whether it was appropriate to order the vesting of the land in question under Section 58 of the Trustee Act 1956. This section provides that the Court may vest land in a person when a trustee is under a disability, such as incapacity. The Court noted that the applicants had provided sufficient evidence to establish that John Roland Murdoch was indeed incapacitated and that the vesting of the land was necessary to manage the trust's assets effectively.

The Court accepted the applicants' arguments and granted the substantive application in the terms sought. The Court found that there were no other parties who needed to be notified of the application, as it was a routine matter and the beneficiaries of the trust were unaffected. The Court also accepted that a litigation guardian did not need to be appointed for John Roland Murdoch in the circumstances of the case.

In summary, the Court granted the application for vesting the land in the names of Lisa Maree Murdoch and Lynda Margaret Murdoch as joint tenants, in light of the incapacity of the former trustee, John Roland Murdoch.

Orders