Ond Trustees Limited v Fitzgerald

[2015] NZHC 2794

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-118 [2015] NZHC 2794

UNDER

the Trustee Act 1956

UNDER

Part 19 of the High Court Rules 2008

IN THE MATTER OF

an application under section 52 for a vesting order of land

BETWEEN

OND TRUSTEES LIMITED Applicant

AND

DALE LA-CUSHLA STEWART FITZGERALD

Respondent

Hearing:	10 November 2015
Counsel:	L N Pegg for Applicant
Judgment:	11 November 2015

JUDGMENT OF MANDER J

[1]      The applicant, OND Trustees Limited, is the continuing trustee of the D L-C S Fitzgerald Family Trust (the trust).  An asset of the trust is a property situated at

311 Harrington Point Road, Dunedin (the property).

[2]      An original trustee of the trust was Mrs Dale La-Cushla  Stewart Fitzgerald (Mrs Fitzgerald).  She was the primary discretionary beneficiary of the Trust.  Sadly, Mrs Fitzgerald has been diagnosed with dementia and now resides in a secure rest home facility.  She wholly lacks capacity to discharge her duties as a trustee of the Trust.

[3]      As  a result,  Mrs  Fitzgerald  was  removed as  a  trustee by deed  dated  22

September  2015.    Ms Margaret  Fitzgerald,  in  her  capacity  as  Mrs  Fitzgerald’s

OND TRUSTEES LIMITED v FITZGERALD [2015] NZHC 2794 [11 November 2015]

attorney, has appointed David Fitzgerald as a new trustee in her stead.  The removal of Mrs Fitzgerald and the appointment of David Fitzgerald was able to be undertaken pursuant to the trust deed.

[4]      A vesting order is now sought pursuant to s 52 of the Trustee Act 1956 (the Act) in order for the property to be transferred into the names of the current trustees. Ancillary orders are sought seeking leave to bring the proceeding by way of originating application,  and  dispensing  with  service of the notice of originating application   and   supporting   documents   upon   Mrs   Fitzgerald   and   the   other beneficiaries of the Trust.

[5]      Mr Paul O’Neill, a solicitor and director of the continuing trustee, OND Trustees   Limited,   has   deposed   that   the   beneficiaries   of   the   trust,   namely Mrs Fitzgerald’s children, Anthony Robert Fitzgerald, Edward Wayne Fitzgerald and David  Ronald  Fitzgerald,  and  an  additional  secondary  discretionary  beneficiary, Marie Ferris, have given their written consent to the making of a vesting order. Margaret Fitzgerald as attorney for Mrs Fitzgerald, and acting as advisory trustee of the trust, has also given her written consent.   I have viewed these statements of consent.

[6]      The property has a rateable value of $205,000 and there is a mortgage over the property in favour of the BNZ Bank securing a loan of $40,000.  The bank has given its written consent to the application.  To Mr O’Neill’s knowledge, there are no other parties that have any interest in the making of the vesting order.

[7]      Mr O’Neill confirms that Mrs Fitzgerald has been diagnosed with dementia and is incapacitated.  He has provided two reports from a medical practitioner dated

5 June 2015 which confirm the diagnosis of dementia.  Service of the proceedings upon Mrs Fitzgerald would likely cause her some distress.  She lacks the capacity to understand the nature and purpose of the proceedings.

[8]      Section 52 of the Act justifies the making of a vesting order in circumstances such as the present for the purpose of regularising the particulars of ownership of land, and in particular to ensure that all present trustees are accurately recorded on

the title.   Being satisfied of the need to regularise the formal ownership of the property in the name of the new trustee and the continuing trustee, I grant the order as requested.

[9]      In the circumstances, I am satisfied that this is an appropriate application to be brought by way of an originating application.  Similarly, I am satisfied that in the circumstances formal service can be dispensed with.

[10]     Being satisfied of the particulars as canvassed, I make the following orders:

(a)      Leave is granted to bring these proceedings by way of originating application;

(b)Service of the notice of originating application and supporting documentation upon the incapacitated trustee can be dispensed with;

(c)      Service upon the beneficiaries of the D L-C S Fitzgerald Family Trust is similarly dispensed with;

(d)The land at 311 Harrington Point Road, Dunedin, CT OT371/166 is vested in David Ronald Fitzgerald (“the new trustee”) and OND Trustees Limited (“the continuing trustee”).

Solicitors:

O’Neill Devereux, Dunedin