Public Trust v Daken - [2017] NZHC 1285

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2017-442-000026 [2017] NZHC 1285

UNDER Section 52 of the Trustee Act 1956

BETWEEN

PUBLIC TRUST Applicant

AND

MALCOLM ERWIN DAKEN Respondent

Hearing: (On the papers)

Judgment:

13 June 2017

JUDGMENT OF FAIRE J

[1] The Public Trust as the sole remaining trustee of the Daken Family Trust applies for orders:

(a) Removing the name of Malcolm Erwin Daken from the title to the property at 2 Fearon Street, Motueka (Identifier NL 1D/542);

(b) Vesting the title in the name of Public Trust alone; and

(c) Vesting Malcolm Daken’s powers as Protector in the trustee(s) of the

Daken Family Trust.

[2] This application is made by originating application and in reliance on s 52 of the Trustee Act 1956.

[3] The background is set out in the affidavit of Rachael Louise Suffolk dated

5 April 2017 and provides the following summary:

PUBLIC TRUST v DAKEN [2017] NZHC 1285 [13 June 2017]

(a) The Daken Family Trust was established by deed dated 25 August

2014.

(b)One of the trustees, Malcolm Erwin Daken (“Malcolm”), is no longer competent to continue in that role and no longer has the power to appoint and remove trustees of the trust.

(c) Malcolm’s incapacity is confirmed by a medical certificate from

Dr M J Hudson, dated 30 January 2016.

(d)The other trustee the Public Trust wishes to sell the house property, which is the principal asset of the trust, as Malcolm has moved into more suitable accommodation.

(e) The sale cannot be completed without both removal of Malcolm as a trustee and vesting of the land title in the name of the Public Trust.

(f) A deed has been signed removing Malcolm as trustee and leaving Public Trust as sole trustee of the trust. The trust deed permits a trustee corporation to act as sole trustee.

(g)Malcolm has no spouse, children or grandchildren. The beneficiaries of the trust are two adult nieces and an adult nephew. Two of these beneficiaries have consented to the application and the third has been notified of the proceedings by the Public Trust but has failed to respond to a number of letters.

[4] Simon France J dealt with the applicant’s application without notice for directions as to the conduct of the proceeding and as to service and ordered as follows:1

The proceedings may be commenced by originating application and otherwise conducted in accordance with Part 18 of the Rules.

The respondent, Malcolm Erwin Daken, need not be served.

Ms Juliet Burton, being a beneficiary who has not consented, is to be served with the proceedings, together with a copy of this Minute. This Minute advises Ms Burton that the matter will be dealt with on the papers three weeks after she is served with the proceedings if a notice of opposition is not filed.

An affidavit of service is to be filed.

The Registry is to refer the file to a duty Judge three weeks after the service date advised in the…

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 Daken

Details

AGLC: Public Trust v Daken [2017] NZHC 1285
Case: [2017] NZHC 1285
Decision Date: 13 June 2017

CaseChat Overview and Summary

The case of Public Trust v Daken was heard by Faire J in the High Court of New Zealand. The Public Trust, acting as the sole remaining trustee of the Daken Family Trust, applied for orders to remove Malcolm Erwin Daken from the title of the property located at 2 Fearon Street, Motueka, and to vest the title in the name of the Public Trust alone. Additionally, the Public Trust sought to vest Malcolm Daken’s powers as Protector in the trustee(s) of the Daken Family Trust. The application was brought under section 52 of the Trustee Act 1956. The court was required to determine whether it had the jurisdiction to remove Malcolm as a trustee due to his incapacity, and whether it could vest his powers as Protector in the Public Trust.

Faire J found that the court did have the jurisdiction to remove Malcolm as a trustee and to vest the property title in the Public Trust. The court considered that Malcolm's incapacity was confirmed by a medical certificate and that the trust deed permitted the Public Trust to act as the sole trustee. The court also found that it was appropriate to vest Malcolm’s powers as Protector in the Public Trust, as Malcolm was unable to exercise those powers due to his lack of capacity. The court referred to previous cases where similar vesting orders were made, and concluded that the orders sought by the Public Trust were appropriate. Therefore, the court granted the orders as requested by the Public Trust.

Orders