O'Neill v Moffat

[2013] NZHC 510

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV2013-412-000157 [2013] NZHC 510

BETWEEN  PAUL STAFFORD O'NEILL AS TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST

Applicant

ANDPATRICIA MARGARET MOFFAT TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST

Respondent

Hearing:         (On papers)

Counsel:         L N Pegg for Applicant

Judgment:      25 March 2013

JUDGMENT OF WHATA J

[1]      This is a without notice application for orders:

(a)       Substituting a trustee of the P J and P M Moffat Family Trust; (b)     Vesting the trust property in the new and remaining trustee.

[2]      Leave is also sought to bring proceedings by originating application and for directions dispensing with service.

[3]      The immediate background to this is that the P J and P M Moffat Family Trust was settled by Deed of Trust on 4 July 2001.  The trustees of the Trust were Peter James Moffat, Mrs Moffat and Paul Stafford O’Neill.

[4]      Mr Moffat died on 9 July 2008 and Mrs Moffat has been diagnosed with dementia.  The current beneficiaries of the Trust are Mrs Moffat; her children, Craig

O'NEILL AS TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST V PATRICIA MARGARET MOFFAT TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST HC DUN CIV 2013-412-000157 [25 March 2013]

Peter Moffat  and  Mark  Douglas  Patrick  Moffat;  and  Craig Moffat’s  two  minor

children are contingent beneficiaries if Craig Moffat dies. [5] The current assets of the Trust include:

1.        1  Churchill  Street,  Dunedin  (rating  value  as  at  1  July  2010  of

$180,000);

2.        34  Brunel  Street,  Dunedin  (rating  value  as  at  1  July  2010  of

$165,000); and

3.        Westpac Bank accounts with approximate balance of $40,000.

[6]      The liabilities of the Trust include mortgages over the Churchill and Brunel

Street properties to Westpac New Zealand securing approximately $276,677.

[7]      Filed with the application is an affidavit of Mark Moffat.  He is one of the beneficiaries of the Trust.  He says he consents to the appointment and he says that he has  been in  communication  with  his  brother,  Craig Moffat,  and  that  he has expressed his consent to Mr Michael O’Neill being appointed as a trustee of the Trust  in  substitution  of  his  mother.    Both  have  also  executed  formal  consent

documentation.[1]     He  also  attaches  a  letter  from  Dr  Arnold  confirming  that

Mrs Moffat suffers from Senile Dementia and lacks capacity.

Assessment

[1] There is a  written statement of consent executed by Mr Craig Moffat, who is resident in

Denmark. It is witnessed by an officer at the Australian Embassy in Copenhagen.

[8]      Section 51(1) and (2)(c) of the Trustee Act 1956 states:

51       Power of Court to appoint new trustees

(1)       The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order appointing a new trustee

or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

(2)       In particular and without prejudice to the generality of the foregoing provision, the Court may make an order appointing a new trustee in substitution for a trustee who-

...

(c)      Is a mentally disordered person within the meaning of [the

Mental Health (Compulsory Assessment and Treatment) Act

1992, or whose estate or any part thereof is subject to a property order made under the Protection of Personal and

Property Rights Act 1988; or

...

[9]      I am satisfied that the orders sought should be granted for the following reasons:

(a)      Rule 19.5 of the High Court Rules provides an appropriate procedure given the uncontested nature of the application and its relative simplicity;

(b)I am satisfied that it is expedient in the circumstances that Mrs Moffat be replaced as a trustee, given her Senile Dementia; and

(c)      The beneficiaries, apart from Mrs Moffat, consent to Mr Michael

O’Neill being appointed as a trustee.

[10]     Accordingly, there shall be orders as follows:

(a)      Removing Mrs Moffat as a trustee and replacing her with Mr Michael

O’Neill; and

(b)An order vesting the land at 1 Churchill Street, Dunedin, (Certificate of Title OT67/216) and 34 Brunel Street, Dunedin (Certificate of Title OT277/220) in the new trustee and the remaining trustee.

Solicitors:

O’Neill Devereux, Dunedin