Otway v Rogers - [2014] NZHC 2171

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001874 [2014] NZHC 2171

UNDER
Part 18 of the High Court Rules, Section

52 Trustee Act 1956

AND

IN THE MATTER OF

the ESTATE OF VERA JEAN OTWAY

BETWEEN

PATRICK JOSEPH OTWAY Plaintiff

AND

NORMA SHIRLEY ROGERS Defendant

On thepapers:

Appearances:

N J Elliott for the Plaintiff

Judgment:

9 September 2014

JUDGMENT OF WOOLFORD

This judgment was delivered by me on Tuesday, 9 September 2014 at 4.15 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

PATRICK JOSEPH OTWAY v NORMA SHIRLEY ROGERS [2014] NZHC 2171 [9 September 2014]

[1] In a statement of claim dated 25 July 2014, the plaintiff seeks an order vesting a property at 155 Gowing Drive, Meadowbank, Auckland, in the name of himself and his wife, Jennifer Jane Otway.

[2] The plaintiff is the only child of Vera Jean Otway who died on 28 October

1996. The deceased left a will, dated 19 December 1995, pursuant to which she appointed the plaintiff and her sister, the defendant, Norma Shirley Rogers, as executors and trustees of her estate. Probate of the will was granted to the plaintiff and the defendant by the High Court at Auckland on 11 November 1996.

[3] Pursuant to cl. 4 of the will, the deceased gave a life interest in a property at

155 Gowing Drive, Meadowbank, Auckland, to the defendant and her husband, Bufort Allen Rogers, on the basis that it would form part of her residuary estate on either the death of the defendant or upon her ceasing to reside in the property. The residuary estate was left to the plaintiff with provision for his two children in the event that the plaintiff should pre-decease the deceased.

[4] The defendant and her husband lived in the property from 1996 until

23 January 2014, when the defendant was admitted to Auckland City Hospital. The defendant currently resides at Epsom South Retirement Home, 57 Parr Road, Epsom, Auckland. Her husband resides nearby at St Johns Hospital, 54 Parr Road, Epsom, Auckland.

[5] Evidence has been provided by Dr Gary Cheung, who is a duly qualified and registered medical practitioner, practicing as an old age psychiatrist. According to Dr Cheung, the defendant has multiple medical problems including dementia, hypotension, seizure disorder, hearing and vision impairment. The defendant’s orientation is impaired as a result of her dementia. For example, she cannot recall the year or month correctly and does not know her current location in Auckland. Such cognitive abilities are required for financial and property management.

[6] The plaintiff has, therefore by deed dated 11 July 2014, appointed his wife, Jennifer Jane Otway, to be an executor and trustee of the deceased’s estate in place of the defendant. The plaintiff wishes to complete administration of the deceased’s

estate, including selling the property at 155 Gowing Road, Meadowbank, Auckland. The plaintiff and the defendant are however registered as proprietors of the property, as executors and trustees of the deceased’s estate. The plaintiff…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Otway v Rogers

Details

AGLC: Otway v Rogers [2014] NZHC 2171
Case: [2014] NZHC 2171
Decision Date: 9 September 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Patrick Joseph Otway sued Norma Shirley Rogers for an order vesting a property at 155 Gowing Drive, Meadowbank, Auckland in the names of himself and his wife, Jennifer Jane Otway. The plaintiff sought this order as executor and trustee of the estate of Vera Jean Otway, who died in 1996. The defendant, who was appointed as executor and trustee of the estate with the plaintiff, no longer resided in the property and had medical issues that impaired her ability to manage her property. The plaintiff sought to sell the property, but the District Land Registrar required a vesting order under the Trustee Act 1956 to transfer the certificate of title.

The court had to determine whether a litigation guardian was necessary to represent the defendant and whether a vesting order was required to enable the transfer of the property to the plaintiff and his wife. The court considered the submissions of counsel for the plaintiff and memoranda from the Public Trust and the defendant's representative. The court found that a litigation guardian was not necessary as the defendant's interests were not compromised by the vesting order. The court also found that a vesting order was necessary to enable the transfer of the property to the plaintiff and his wife as executors of the estate.

The court made an order vesting the property in the names of the plaintiff and his wife as executors of the estate of Vera Jean Otway. The court made no order as to costs. The court's decision allowed the plaintiff to complete the administration of the estate, including selling the property, without further delay.

Orders