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 has also applied to the Family Court at Auckland for orders, under s 12 of the Protection of Personal Property Rights Act 1988, appointing himself as welfare guardian for the defendant and, under s 31 appointing Public Trust, as her property manager.   Mr Michael Headifen, barrister, has been appointed to represent the defendant in the proceedings before the Family Court.

[7]      As is normal in such matters, the District Land Registrar will not accept the deed executed by the plaintiff appointing his wife to be executor in place of the defendant as sufficient to enable the transfer of the certificate of title of the property into the names of the plaintiff and his wife as executors. A vesting order is therefore required under s 52(2) of the Trustee Act 1956.

[8]      By minute dated 4 August 2014, the Court directed the proceedings be served on the Public Trust, as the proposed property manager for the defendant, and on Michael  Headifen,  barrister,  who  has  been  appointed  by  the  Family  Court  at Auckland to represent the defendant.

[9]      The Court has now received memoranda now signed on behalf of the Public Trust and by Mr Headifen consenting to an order vesting the property in the name of the plaintiff and his wife as executors, with no order as to costs.  I have also received and considered a memorandum of submissions of counsel for the plaintiff.  Having considered all the material provided to the Court, I am satisfied that, first, it is not necessary for a litigation guardian to be appointed to represent the interests of the defendant.  Her interests are not compromised by the order sought.  Secondly, I am satisfied that a vesting order is required to enable the District Land Registrar to transfer the property at 155 Gowing Drive, Meadowbank, Auckland, to the plaintiff and his wife as executors in order that the property can then be sold.

[10]     Accordingly, I make an order vesting the property currently owned by the plaintiff and defendant as executors of the estate of Vera Jean Otway at 155 Gowing

Drive, Meadowbank, Auckland, (NA10C/497, North Auckland Registry) in the name of the plaintiff and Jennifer Jane Otway as executors. There is no order as to costs.

……………………………….

Woolford J