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…
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- AGLC
- Public Trust v Daken [2017] NZHC 1285
- Case
- [2017] NZHC 1285
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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