Public Trust v Burfitt - [2020] NZHC 3399

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-610

[2020] NZHC 3399

UNDER the Trustee Act 1956

BETWEEN

PUBLIC TRUST as trustee of the BURFITT FAMILY TRUST

Applicant

AND

MARGARET ANN BURFITT

Respondent

Hearing: On the papers

Counsel:

A K Habershorn for Applicant

No appearance by or for Respondent

Judgment:

17 December 2020

JUDGMENT OF MANDER J

This judgment was delivered by me on 17 December 2020 at 4 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date: .

PUBLIC TRUST v BURFITT [2020] NZHC 3399 [17 December 2020]

[1] The Public Trust makes application for a vesting order and accompanying directions as to service and procedure in respect of a property owned by the Burfitt Family Trust (the Trust).

Background

[2] The Trust was established by deed dated 15 April 2004 (the trust deed). The trustees were Albert Thomas Burfitt (Albert), Margaret Ann Burfitt (Margaret) and Public Trust. Albert died on 2 March 2007. Margaret is no longer mentally competent. A medical certificate confirmed that Margaret is no longer mentally capable. She is unable to manage her own finances or make decisions regarding her personal care and welfare. Under the deed Margaret ceases to have the power to appoint and remove trustees as a result of her mental incapacity. Margaret is also incapable of carrying out her office as trustee or completing transmission documents or documents to transfer property owned by the Trust to the continuing trustee.

[3] Under the deed the remaining trustee, Public Trust, has the power to remove Margaret as trustee due to her mental incapacity. She was removed as a trustee by way of a deed dated 1 December 2020. This left Public Trust as the sole trustee.

[4] The main asset of the Trust is a property at 4A Stanbury Avenue, Somerfield, Christchurch (the property). The Public Trust is considering options regarding the sale of the property. However, it is not possible to progress any sale of the property while Albert and Margaret remain named on the title to the property. Margaret is no longer competent to give authority for the transmission to the remaining trustee, or transferral or removal of her name from the title to the property. Notwithstanding Public Trust having Margaret’s enduring power of attorney for property, it is not able to authorise the transmission or removal of Margaret’s name from the title, despite Albert and Margaret having ceased to be trustees of the Trust.

[5] The beneficiary of the Trust is Albert and Margaret’s daughter, Margaret Ann Tania Burfitt (Tania). Margaret’s personal care and welfare enduring power of attorney is Tania. She has consented to vest the title in the name of the Public Trust in her role as attorney and as the beneficiary of the Trust.

Procedural matters

[6] Before considering the substantive application there are a number of procedural matters that need to be addressed. The without notice interlocutory application for directions as to…

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 Public Trust v Burfitt

Details

AGLC: Public Trust v Burfitt [2020] NZHC 3399
Case: [2020] NZHC 3399
Decision Date: 17 December 2020

CaseChat Overview and Summary

The Public Trust applied to the High Court of New Zealand for a vesting order and directions as to service and procedure in respect of a property owned by the Burfitt Family Trust. The Burfitt Family Trust was established by a trust deed dated 15 April 2004, with Albert Thomas Burfitt, Margaret Ann Burfitt, and the Public Trust as trustees. Albert died on 2 March 2007, and Margaret is no longer mentally competent to manage her own finances or make decisions regarding her personal care and welfare. The Public Trust has the power to remove Margaret as trustee due to her mental incapacity, and she was removed as a trustee by way of a deed dated 1 December 2020. The Public Trust is considering options regarding the sale of the property, but it is not possible to progress any sale while Albert and Margaret remain named on the title to the property.

The court was required to decide whether the Public Trust could be granted a vesting order and accompanying directions as to service and procedure in respect of the property owned by the Burfitt Family Trust. The court had to determine if the application could proceed by way of originating application, if service on Margaret and the beneficiary of the Trust should be dispensed with, if the requirement for a litigation guardian to be appointed for Margaret should be dispensed with, and if the proceedings should be determined on the papers.

The court granted the Public Trust's application for a vesting order and accompanying directions as to service and procedure. The court found that it was appropriate for the application to proceed by way of originating application and that service on Margaret and the beneficiary of the Trust should be dispensed with. The court also found that the requirement for a litigation guardian to be appointed for Margaret should be dispensed with and that the proceedings should be determined on the papers. The court exercised its powers under s 52(1) of the Trustee Act 1956 to vest the land with Record of Title CB32A/494 with the legal description Lot 1 Deposited Plan 12834 in the name of Public Trust as the trustee of the Trust. The names of Albert Thomas Burfitt and Margaret Ann Burfitt were removed from the title to the property at 4A Stanbury Avenue, Somerfield, Christchurch, and title was vested in the name of Public Trust as trustee of the Burfitt Family Trust.

Orders