Needham v McKee

[2015] NZHC 2743

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2015-419-000341 [2015] NZHC 2743

BETWEEN

RODNEY ARTHUR NEEDHAM AND

DAVID STEWART LEE AS TRUSTEES OF THE BARBARA MCKEE FAMILY TRUST

Applicants

AND

BARBARA CATHERINE AGNES MCKEE

Respondent

Hearing:	(On the papers)
Counsel:	Jacqui Owen for the Applicants No appearance by the Respondent
Judgment:	6 November 2015

JUDGMENT OF MOORE J

This judgment was delivered by me on 6 November 2015 at 2:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

NEEDHAM & ANOR v MCKEE [2015] NZHC 2743 [6 November 2015]

[1]      The applicants who are trustees of the Barbara McKee Family Trust (“the

Trust”) seek the following orders:

(a)       leave to commence proceedings by way of an originating application under r 19.5 of the High Court Rules; and

(b)      an order:

(i)dispensing with service of the originating application under rr 19.10 and 7.22 of the High Court Rules; or in the alternative

(ii)directions  as to  service  of proceedings  on  an  incapacitated person under r 4.40 of the High Court Rules and supporting affidavits.

[2]      In the circumstances I am satisfied that leave should be given to commence the proceedings by way of originating application and accordingly I make orders to that effect in terms of r 19.5 of the High Court Rules.

[3]      The substantive application seeks an order in terms of s 52(1)(b)(i) of the Trustee Act 1956 vesting certain land held by Barbara McKee as a trustee in the applicants as the continuing/retiring trustees of the Trust.

[4]      The background is set out below.

[5]      The respondent, Barbara McKee, and the applicants, Rodney Needham and

David Lee hold land at Tauranga and Pauanui Beach as trustees of the Trust.

[6]      Barbara McKee has been diagnosed with Alzheimer’s dementia.  In a medical certificate dated 17 June 2015 and exhibited to the affidavits, the certifying doctor reported that she suffers from severe dementia and a CT scan showed atrophy.  The doctor observed that Barbara McKee is unable to make decisions regarding any of her financial or legal matters.

[7]      As a result, she was removed as a trustee of the Trust and  replaced  by

Nancy Perrett by way of a deed dated 15 June 2015.

[8]      Rodney Needham and David Lee now wish to retire as trustees of the Trust and transfer the land to the new trustees, Nancy Perrett and Suzanne McKee.

[9]      Due to her incapacity Barbara McKee is unable to execute the necessary documentation to transfer her interest to Rodney Needham and David Lee.

[10]     The difficulty which Rodney Needham and David Lee face is that due to the requirements of LINZ they are unable to transfer the land without vesting the interest in the land in the retiring/continuing trustees.

[11]     It is for this reason they seek an order vesting the land in the names of themselves as retiring/continuing trustees.

[12]     The present factual position is on all fours with the factual matrix which confronted Heath J in Kohn v Kohn.1   As was Heath J in Kohn, I can see no basis on which a substantive order should be refused and am prepared to deal with it on the papers.

[13]     In the circumstances I am satisfied that it is appropriate to make the orders sought and, accordingly the following orders are made:

(a)       an order dispensing service of the proceedings on the respondent due to her incapacity;

(b)      the granting of a vesting order under s 52(1)(b)(i) of the Trustee Act

1956 vesting the land contained in the Certificates of Title SA41C/967 and  SA64C/220  situated  at  225A  Ngatai  Road,  Tauranga  and

16A Monarch   Grove,   Pauanui   Beach   in   the   applicants   as   the

continuing trustees.

1      Kohn v Kohn [2014] NZHC 1154.

[14]     Leave is reserved to seek such further or other orders as may be necessary to

give effect to the judgment.

Moore J

Solicitors:

Allen Needham & Co Limited, Morrinsville