Newman v Newman

[2019] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000536

[2019] NZHC 622

IN THE MATTER

of an application for a vesting order pursuant to s 52 of the Trustee Act 1956

BETWEEN

ALICE PEI LING NEWMAN

Applicant

AND

ALICE PEI LING NEWMAN, JOHN SAMUEL NEWMAN and ROBERT

BURNES TRUSTEE (2016) LIMITED as

Trustees of the Alice and John Newman Trust

Respondents

Hearing:	On the papers
Judgment:	28 March 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 28 March 2019 at 2:15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           Robert Burnes & Associates, Auckland

Counsel:            Rennie Cox, Lawyers (DJG Cox), Auckland

NEWMAN v NEWMAN [2019] NZHC 622 [28 March 2019]

[1]    John Samuel Newman is a joint settlor and joint appointor and one of the trustees named in the Trust Deed of the Alice and John Newman Trust. He has recently been diagnosed with dementia. As a consequence he is no longer mentally capable of performing his responsibilities as a trustee and is incapable of resigning as a trustee or appointing a successor.

[2]    Mr Newman’s wife, who is one of the other trustees, Alice Pei Ling Newman, now brings an application without notice for orders:

(a)Permitting the proceedings to be commenced by way of an originating application;

(b)Dispensing with service;

(c)For removal and appointment of a trustee; and

(d)Vesting title in trust property and assets in the continuing trustees.

[3]    Before his dementia diagnosis, Mr Newman granted Enduring Powers of Attorney in favour of his wife in respect of property, and personal care and welfare. As a consequence of the recent High Court decision of Godfrey v McCormick and the position taken by Land Information New Zealand, it is not possible for Ms Newman to utilise the Enduring Power of Attorney to effect a resignation of Mr Newman as trustee under the terms of the Trust Deed.1 He is also not able to sign an Authority & Instruction form to transfer title of the trust property at 14 Markham Place, Bucklands Beach, Auckland to the continuing trustees. That is why such an application is required.

[4]    In terms of Godfrey v McCormick applications to remove a trustee who lacks capacity and appoint a new trustee and to transfer title in land belonging to that trust to a new trustee:

1      Godfrey v McCormick [2017] NZHC 420.

(a)May be determined by way of an originating application, subject to an application under High Court Rule 19.7;

(b)May be determined on the papers;

(c)May be determined without requiring the application to be served on the trustee who is no longer mentally capable of performing his role as trustee. This is because serving the proceedings on such a trustee would serve no useful purpose.

[5]    Accordingly, Ms Newman seeks a direction that the proceedings may be brought by way of an originating application and need not be served upon her husband, Mr Newman. As one of the trustees is the applicant, Ms Newman, and the other trustee, Robert Burnes Trustee (2016) Ltd, is a trustee company operated by Mr Burnes of Robert Burnes & Associates, it is submitted that service may be dispensed with entirely and the application be considered on the papers.

[6]    I have read the affidavits in support of the application and considered the case of Godfrey v McCormick. I am satisfied that the orders sought are appropriate.

[7]Accordingly, I make the following orders:

(a)Permitting the proceedings to be commenced by way of an originating application;

(b)Dispensing with service of the proceedings on John Samuel Newman and Robert Burnes Trustee (2016) Ltd;

(c)Removing John Samuel Newman as a  trustee  of  the  Alice  and  John Newman Trust;

(d)Vesting title to the property registered in the names of the current trustees at 14 Markham Place, Bucklands Beach, Auckland, Certificate of Title NZ19B/963 in the continuing trustees Alice Pei Ling Newman and Robert Burnes Trustee (2016) Limited; and

(e)Vesting title in the bank account and share portfolio held by the current trustees of the Alice and John Newman Trust in the continuing trustees Alice Pei Ling Newman and Robert Burnes Trustee (2016) Limited.

Woolford J