Palliser

[2019] NZHC 2871

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-002373

[2019] NZHC 2871

IN THE MATTER OF

Section 52 of the Trustee Act 1956

AND

IN THE MATTER OF

An application by GRAEME KEITH PALLISER, SARAH LOUISE PALLISER and PALLISER TRUSTEE COMPANY

LIMITED, Trustee Services as Trustees of THE G K & C O PALLISER FAMILY
TRUST

Applicants

Hearing:	In Chambers (on the papers)
Counsel:	P A Fuscic for the applicants
Judgment:	5 November 2019
Reissued:	07 November 2019

JUDGMENT OF GWYN J

This judgment was delivered by me on 5 November 2019 at 3.00pm and reissued on 7 November (to correct a minor typo error at para 18 (a))

Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:
McVeagh Fleming, Auckland

THE G K & C O PALLISER FAMILY TRUST [2019] NZHC 2871 [5 November 2019]

[1]                  This is an application for orders vesting land in the applicants as Trustees of the G K & C O Palliser Family Trust (Trust), dispensing with service of the proceeding on Carol Olive Palliser and the beneficiaries of the Trust; and granting the applicants leave to proceed for the making of the above orders by originating application.

[2]                  The Trustees of the Trust are Graeme Keith Palliser, Sarah Louise Palliser and Palliser Trustee Company Limited.

[3]                  The Trust was established by Deed of Settlement date 31 October 2002 (“Deed”). The Trust was settled by Graeme Keith Palliser, one of the applicants, and his wife Carol Olive Palliser. By the Deed of Settlement, they appointed themselves and Lindsay John Jackson, of Auckland, Chartered Accountant, as the Trustees.

[4]                  Graeme and Carol’s family home at 100 Braemar Road, Castor Bay, Auckland was settled by them into the Trust and the title recorded Graeme and Carol, together with Lindsay Jackson, as the registered proprietors of the Trust.

[5]                  Mr Jackson died on 01 June 2015. Graeme and their son Andrew James Palliser, are joint attorneys of Carol’s Enduring Power of Attorney in Relation to Property.

[6]                  Graeme and Andrew as Appointors have appointed Palliser Trustee Company Limited to replace Mr Jackson as the independent Trustee.

[7]                  Mrs Palliser is suffering from dementia. She is in hospital care in a retirement village in Birkenhead, Auckland. Dr Mark Groen examined and assessed Mrs Palliser on 17 October 2019 and concluded that her severe dementia manifesting itself as poor memory cognition and concentration, means that she lacks the capacity to make decisions regarding the property and is unable to perform her duties as a Trustee.

[8]                  Carol has been removed as a Trustee by the holders of the powers of removal under the Palliser Trust Deed, namely Graeme in his own right and jointly with their son Andrew.

[9]                  An order vesting the property in the applicants as the current Trustees is required to enable the title to be registered in their names, given that Mrs Palliser is not mentally capable of executing the supporting authority and instruction forms. The Attorneys of her Enduring Power of Attorney as to Property do not have the legal power to execute such transfer forms on her behalf.

[10]              Mr Palliser notes in his supporting affidavit that Mrs Palliser is currently in care in the hospital at the Bert Sutcliffe Retirement Village in Birkenhead, Auckland. He has been meeting the costs of her care from their savings, but these are being depleted quite rapidly. His evidence is that the income he and Mrs Palliser make from their savings is not enough to cover the costs of Mrs Palliser’s care as well as his living expenses.

[11]              He therefore wishes to sell the Trust property at 100 Braemar Road so that the funds of the sale can be made available to meet the costs of Mrs Palliser’s care. He notes that the sale of the property will need to occur promptly and that once it has been completed, a smaller property will be purchased by the Trust for him to live in.

Dispensing with service

[12]              The applicants seek an order dispensing with personal service entirely, that is in relation to Mrs Palliser and any other person. I accept that it is in the interests of justice for the application to be made without notice. The proceeding is uncontentious. Mrs Palliser has dementia and is unable to participate in the proceedings. All other beneficiaries consent to the orders sought 1. There are no other persons who should be served as persons who are “interested in, or maybe adversely effected by, the relief sought”.2

Litigation guardian

[13]              The originating application submits that no good purpose would be served by making any order for an appointment of a litigation guardian for Mrs Palliser.

1      Mr Palliser, Mrs Palliser and their three adult children are the Primary Beneficiaries. Their three children are the final Beneficiaries. All three children give their consent to the making of the orders.

2      High Court Rules 2016, r 18.7[3]

[14]              Rule 4.30 of the High Court Rules requires that an incapacitated person be represented by a litigation guardian unless the Court otherwise orders.

[15]              In this case, the originating application does not seek any relief that is adverse to the interests of Mrs Palliser. That tells against the need to appoint a litigation guardian who, in the normal course, would be expected to investigate that issue amongst other things and come to a conclusion about how Mrs Palliser should respond to the application, taking into account her best interests.

[16]              In Docherty v Docherty, Associate Judge Bell considered, on facts similar to this case, that a litigation guardian was unnecessary.3 In Hunt v Moran, similarly, Clark J found that appointing a litigation guardian was inappropriate in the context of the particular application.4

[17]              I conclude that this is a proper case to exercise the discretion in r 4.30. There will therefore be an order dispensing with the need for a litigation guardian in respect of Mrs Palliser.

Orders

[18]I make orders in the terms sought in the originating application:

a)The land contained in identifier NA977/66 North Auckland Land Registration District and situated at 100 Braemar Road, Castor Bay, Auckland is vested in the applicants Graeme Keith Palliser, Sarah Louse Palliser and Palliser Trustee Company Limited as Trustees of The G K & C O Palliser Family Trust.

b)That service of this proceeding on Carol Olive Palliser and on the beneficiaries of the Trust is dispensed with.

c)Granting the applicants leave to proceed for the making of the above orders by originating application.

3      Docherty v Docherty [2013] NZHC 1885.

4      Hunt v Moran [2018] NZHC 3108.

Gwyn J