Naylor v Rooney

[2021] NZHC 38

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-002

[2021] NZHC 38

UNDER

section 52 of the Trustee Act 1956

IN THE MATTER OF

the GARTH PERKINS FAMILY TRUST and THE PAT PERKINS FAMILY TRUST

BETWEEN

ANNE-MAREE NAYLOR

Applicant

AND

KATHLEEN MARGARET ROONEY

Respondent

On the papers:
Counsel:	E J Collins for Applicant
Judgment:	29 January 2021

JUDGMENT OF CHURCHMAN J

Background

[1]                  The Garth Perkins Family Trust and The Pat Perkins Family Trust (the Trusts) were established by the late Garth Anthony Perkins and the late Patricia Mary Perkins on 28 April 1995. Mr Perkins died on 7 May 2013 and Mrs Perkins on 10 November 2013.

[2]                  The Trusts are the registered proprietors of a property situated at 33B Tilsley Street, Glenholme, Rotorua being all the land comprised and described in Computer Freehold Register Identifier SA28B/280 South Auckland Registry.

NAYLOR v ROONEY [2021] NZHC 38 [29 January 2021]

[3]                  The sole surviving  trustee  of  the  Trusts  is  Kathleen  Margaret  Rooney.  Dr M A Tarry has sworn an affidavit confirming that Kathleen Rooney is no longer of full mental capacity.

[4]                  The applicant is the daughter of Garth Anthony Perkins and Patricia Mary Perkins. She has applied for an order removing Kathleen Margaret Rooney as a trustee of the Trusts on the grounds that Ms Rooney no longer has mental capacity, and the replacement of Kathleen Margaret Rooney as trustee in each of the Trusts with herself and her sister, Christine Mary Stratford.

Without notice application

[5]                  The applicant has sought leave to proceed by way of originating application without notice on the basis that Kathleen Margaret Rooney no longer has the capacity to understand the legal documents; there is no opposing party to the application, all of the beneficiaries have consented.

[6]                  On the basis of the affidavit evidence filed in support, I am satisfied that this is an appropriate case for leave to be granted for the originating application to proceed on a without notice basis.

Substantive application

[7]                  It is clear that Kathleen Margaret Rooney is no longer capable of acting as a trustee and it is necessary for her to be replaced. The Trusts need two new trustees and it is appropriate to appoint the applicant Anne-Maree Naylor of Wellington, Retired, and her sister, Christine Mary Stratford as the new trustees of the two Trusts, and to vest the property in them.

Orders

[8]I make the following orders:

(a)Kathleen Margaret Rooney is replaced as a trustee of the Garth Perkins Family Trust and The Pat Perkins Family Trust and is replaced as a

trustee in both Trusts by Anne-Maree Naylor and Christine Mary Stratford; and

(b)vesting the property at 33B Tilsley Street, Glenholme, Rotorua, Computer Freehold Register Identifier SA28B/280, South Auckland Registry in Anne-Maree Naylor and Christine Mary Stratford.

[9]The draft Court order filed with the application is approved.

Churchman J

Solicitors:
Collins & May Law Office for Applicant