O'Shea v O'Shea

[2018] NZHC 3035

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-128

[2018] NZHC 3035

UNDER

Part 19 of the High Court Rules and Section 52 of the Trustee Act 1956

IN THE MATTER OF

an application for a vesting order in respect of land

BETWEEN

BETHLEY ROSEMARY O'SHEA and GUNSON MCLEAN TRUSTEE SERVICES LIMITED

Applicants

AND

THOMAS DANIEL O'SHEA

Respondent

On the papers

Counsel:

PJ Magee for Applicants

No appearance by or on behalf of Respondent

Judgment:

22 November 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 22 November 2018 at 3.30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

O'SHEA & ANOR v O'SHEA [2018] NZHC 3035 [22 November 2018]

[1]    The applicants, Bethley Rosemary O'Shea and Gunson McLean Trustee Services Limited, are trustees of the T D & B R O'Shea Family Trust (the Trust), constituted by deed dated 3 June 2008. The respondent is Mrs O'Shea's husband and a beneficiary of the Trust.

[2]    Mr O'Shea suffers from dementia as is confirmed by a letter from his doctor, Dr Paula Mathieson, dated 16 March 2018. Dr Mathieson's opinion is that Mr O'Shea is no longer capable of making decisions about his personal care, welfare, and property.

[3]    On 17 December 2001, Mr O'Shea executed an enduring power of attorney in favour of Mrs O'Shea, in relation to his property. This was done for the purpose of Part IX of the Protection of Personal and Property Rights Act 1988. The power of attorney granted expressly stated that the authority "shall not be revoked if I become mentally incapable". Mrs O’Shea is now acting under the powers thus provided to her in connection with her husband’s affairs.

[4]    The applicants own a property at 14 Norfolk Street, Whangarei. The present proceeding has been issued to obtain a vesting order1 so that property may be transferred into the names of the applicants. The District Land Registry will not accept the use of the power of attorney and the existing Deed of Removal and Appointment of New Trustees to facilitate that transfer. The purpose of the vesting order is to show the present trustees as the registered proprietors of the property.

[5]    The applicants ask the Court to dispense with the need to serve Mr O'Shea.    I am satisfied that service would serve no useful purpose and order that service on Mr O’Shea be dispensed with accordingly.

[6]    I am also satisfied that it is proper that a vesting order should be made now. Accordingly,  I  order  that  the  property   at   14 Norfolk   Street,   Whangarei   (CFR NA139D/361) shall be vested in the names of Bethley Rosemary O'Shea and Gunson McLean Trustee Services Limited. The order is made on the basis that they are to hold the property as trustees for the Trust.

1      Trustee Act 1956, s 52(1)(h).

[7]All costs in relation to the application shall be paid out of the Trust's funds.

....................................................

Toogood J