Parsonage v Parsonage - [2020] NZHC 454

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000101

[2020] NZHC 454

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

IN THE MATTER

of the Parsonage Family Trust

BETWEEN

BERNARD FRANCIS PARSONAGE and

ANDREA MARY PARSONAGE as trustees of the Parsonage Family Trust

Applicants

AND

MARY PARSONAGE

Respondent

Hearing: Determined on the papers

Counsel:

M K Crimp for Applicants

Judgment:

10 March 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 10 March 2020 at 11.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

PARSONAGE v PARSONAGE [2020] NZHC 454 [10 March 2020]

Background

[1] On 4 April 2002, Mary Parsonage (Mary) settled the Parsonage Family Trust appointing herself and Bernard Francis Parsonage (Bernard) trustees. Bernard is the only child of Mary and her late husband Thomas Bernard Parsonage and he is the final beneficiary of the Trust. No discretionary beneficiaries have been appointed pursuant to the trust deed and Mary is not a beneficiary.

[2] Mary lacks capacity to carry out her role as a trustee. On 24 February 2020, Bernard purported to exercise a power under the trust deed to remove Mary as a trustee and to appoint in her place, Andrea Mary Parsonage (Andrea). Andrea is Bernard’s wife.

[3] The trust assets include a property at 336 Lyttelton Street, Spreydon, Christchurch. The Lyttelton Street property was damaged by earthquake and cannot be repaired or used as a rental. Bernard and Andrea wish to sell the property but cannot do so whilst Mary is registered on the title as a trustee. They therefore apply for an order vesting title in the Lyttelton Street property in their names as trustees. In addition, they have applied for associated orders for leave to commence the proceeding by way of originating application, that service of the proceeding on Mary be dispensed with, and that no litigation guardian be appointed to represent Mary.

[4] I am satisfied Mary suffers from dementia and is not capable of making decisions concerning her obligations as a trustee. Mary has been living at the Hoon Hay Resthome where she has had specialist dementia care since 15 July 2019. In addition to Bernard’s evidence there are two certificates from medical practitioners confirming Mary has a diagnosis of dementia and she lacks capacity to sign legal documents or make decisions in relation to her welfare or property.

Procedural requirements

[5] This proceeding is not one that can be commenced by originating application as of right. The court may, in the interests of justice, permit proceedings not mentioned

in rr 19.2 – 19.4 High Court Rules to be commenced by originating application. Such permission may be sought without notice.1

[6] This is an application which does not raise difficult issues, is unopposed and does not require particularised pleadings. There will be no interlocutory applications. It is suitable to be commenced by originating application and…

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 Parsonage v Parsonage

Details

AGLC: Parsonage v Parsonage [2020] NZHC 454
Case: [2020] NZHC 454
Decision Date: 10 March 2020

CaseChat Overview and Summary

The case of Parsonage v Parsonage involved an application by Bernard Francis Parsonage and Andrea Mary Parsonage, as trustees of the Parsonage Family Trust, to remove Mary Parsonage as a trustee and appoint Andrea in her place. Mary lacked capacity to carry out her role as a trustee and the trustees wished to sell a property held under the trust but could not do so while Mary was registered on the title. The legal issues in this case were whether Bernard had the power to remove Mary as a trustee and appoint Andrea in her place, and whether the court could make an order vesting title in the trustees' names. The court found that there was uncertainty around the meaning of the trust deed and the validity of Bernard's actions. However, given that Mary was incapable of exercising her functions as a trustee and the orders sought were necessary for the proper administration of the trust, the court made amendments to the application and granted the orders sought. The court removed Mary as a trustee, appointed Andrea in her place, and vested the property in the trustees' names. The costs of the proceeding were to be met from the resources of the Parsonage Family Trust.

This case highlights the importance of carefully drafting trust deeds to ensure that the powers of trustees are clearly defined and can be exercised in a manner that is consistent with the interests of the beneficiaries. It also demonstrates the court's willingness to intervene in trust administration where necessary to ensure that the trust is being properly administered and the interests of the beneficiaries are protected.

Orders