Porteous v McDowall

[2019] NZHC 3203

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-114

[2019] NZHC 3203

UNDER

the Trustee Act 1956

IN THE MATTER

of an application for vesting orders

BETWEEN

CAROLYN MARGARET PORTEOUS and

ROSS WILSON McDOWALL in respect of the F W AND O M McDOWALL FAMILY TRUST NO 2

First Applicants

VERONICA McDOWALL in respect of the GORDON F McDOWALL FAMILY TRUST

Second Applicant

AND

FLEMING WILSON McDOWALL

Respondent

Hearing:	5 December 2019 (On the papers)
Counsel	B J Nettleton for the Applicants
Judgment:	5 December 2019

JUDGMENT No. 2 OF ASSOCIATE JUDGE LESTER

(in relation to the Gordon F McDowall Family Trust)

This judgment was delivered by me on 5 December 2019 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 5 December 2019

PORTEOUS v McDOWALL [2019] NZHC 3203 [5 December 2019]

[1]        The  background   to   this   judgment   is   set   out   in   my   judgment   of   6 November 2019.1

[2]        That judgment related to an application by the trustees of two family trusts for orders removing the respondent who had unfortunately lost capacity due to a health condition that is going to continue indefinitely. Vesting orders were sought in relation to each of the family trusts.

[3]        In that judgment, orders were made removing the respondent as trustee of the F W and O M McDowall Family Trust No 2 and a vesting order in relation to a property owned by that Trust at Winton was made. I did not grant orders in relation to the Gordon F McDowall Family Trust as upon the respondent being removed as trustee of that Trust, Veronica McDowall would have been left as the sole trustee. I said it was my preference not to create a situation where there was a sole trustee who was also   a beneficiary.

[4]        Accordingly, while I was satisfied that it was in the best interests of the Gordon F McDowall Family Trust to remove the respondent as a trustee, I did not do so at that time and I adjourned the application as regards that Trust and invited counsel to consider the appointment of an additional trustee.

[5]        Counsel have now filed a memorandum producing a Deed of Appointment of a further trustee to the Gordon F McDowall Family Trust. The new trustee is Katie Veronica Mary McDowall.

[6]        With the concern raised by me in my judgment of 6 November 2019 now addressed, it is appropriate that there is now an  order under s 51 of the Trustee     Act 1956 removing Fleming Wilson McDowall as trustee of the Gordon F McDowall Family Trust.

[7]        For the reasons given in my earlier judgment, it follows that a vesting order is required.

1      Porteous v McDowall [2019] NZHC 2874.

[8]Accordingly, there is a vesting order as follows:

That the property at 1475 Limehills-Browns Road, Winton legal description Lot 1 Deposited Plan 3437 and Part Lot 1 Deposited Plan 3314, Certificate of Title SL1A/339, Southland Land Registration District, vest in VERONICA McDOWALL and KATIE VERONICA MARY McDOWALL as trustees of the GORDON F McDOWALL FAMILY TRUST.

Associate Judge Lester

Solicitors:
French Burt Partners, Invercargill