Pickmere v Pickmere

[2017] NZHC 2110

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2017-463-81 [2017] NZHC 2110

UNDER

Sections 52(1)(b)(i) and 52(3) of the

Trustee Act 1956

IN THE MATTER

of vesting of SA14B/1005 in the trustees of the NFR Pickmere Family Trust

BETWEEN

ROSS HUGH PICKMERE IN HIS CAPACITY AS TRUSTEE OF THE NFR PICKMERE FAMILY TRUST

Applicant

AND

ARNOLD RALPH PICKMERE, RETIRED TRUSTEE OF THE NFR PICKMERE FAMILY TRUST Respondent

On the papers
Counsel:	GM Sandelin and M Toulmin for Applicant
Judgment:	31 August 2017

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 31 August 2017 at 4.30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Pickmere v Pickmere [2017] NZHC 2110 [31 August 2017]

[1]      The NFR Pickmere Family Trust was settled by Mrs Norah Pickmere on

1 April 1980.   She appointed two of her sons, Ross Hugh Pickmere and Arnold Ralph Pickmere, to be trustees.  Mrs Pickmere is now deceased and I am satisfied on the  evidence  of  Dr  Ponni  Palaniappan  that Arnold  Pickmere  is  not  capable  of comprehending or understanding any documents which might be served on him or the purpose and effect of the Court proceedings.

[2]      Arnold Pickmere has been removed as a trustee of the Trust and another of Mrs Pickmere’s  sons,  Stuart  Edward  Pickmere,  and  her  daughter,  Jane  Elinor Mackie, have been appointed new trustees.

[3]      Because  of  his  mental  incapacity, Arnold  Pickmere  is  unable  to  execute documents necessary to transfer into the names of the new trustees a Trust property at 21 Bluff Road, Kuaotunu of which he is a registered proprietor.  The transfer is necessary so that the new trustees may sell the property and distribute the assets of the Trust to the beneficiaries in due course.

[4]      I  am  satisfied  that,  consistently  with  the  High  Court  Rules1    and  the authorities, it is appropriate to grant leave to commence the proceeding by way of originating application under r 19 and, in the circumstances, to direct that service of the proceeding be dispensed with.  In coming to that view, I rely upon:

(a)      the  evidence  of  Dr Ponni  Palaniappan  that  Arnold  Pickmere  is mentally incapacitated;

(b)the evidence of Ross Pickmere that there is no other interested person who might be prejudiced; and

(c)      the vesting of the property is for the purpose of an enabling the Trust to continue operating so it will not adversely affect the interests of any of the beneficiaries.

[5]      I am also satisfied that the vesting order should be made.

1      High Court Rules 2016, rr 19.5(1), Jones v HW Broe Ltd (1989) 5 PRNZ 206 (HC), Cunningham v Cunningham [2016] NZHC 1075.

[6]      Accordingly, I order that:

(a)      leave  is  granted  to  bring  the  proceeding  by  way  of  originating application;

(b)service is dispensed with and the matter should be dealt with on the papers; and

(c)      the property at 21 Bluff Road, Kuaotunu, more properly described as Lot 34 on DP South Auckland 10730, unique identifier SA14B/1005, is vested in Ross Hugh Pickmere, Stuart Edward Pickmere and Jane Elinor Mackie.

[7]      Costs are not sought.

...................................................

Toogood J