Public Trust v Shipton

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-15

[2019] NZHC 269

UNDER Part 19 of the High Court Rules and the Trustee Act 1956

IN THE MATTER

of an application for a vesting order in respect of land

BETWEEN

PUBLIC TRUST as trustee of the SHIPTON FAMILY TRUST

Applicant

AND

WINIFRED SHIPTON

Respondent

On the papers

Appearances:

J Gandy for Applicant

Judgment:

27 February 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 27 February 2019 at 11.00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

PUBLIC TRUST v SHIPTON [2019] NZHC 269 [27 February 2019]

[1] Public Trust, Ronald Peter Shipton and the respondent, Winifred Shipton ("Winifred"), are named as the registered proprietors of a property, being the land contained in CFR NA108B/984, North Auckland (“the Land”). The title to the Land is held by the registered proprietors in the capacity of trustees of the Shipton Family Trust ("the Trust"), established by deed dated 2 May 2012 ("the deed").

[2] Ronald Shipton died on 28 April 2018. His widow, Winifred, is aged 86. The report of Dr Jill Rocha, dated 15 October 2018, confirms that Winifred suffers from advanced dementia and lacks the mental capacity to manage her affairs and the affairs of the Trust.

[3] By deed dated 5 February 2019, Winifred was removed as a trustee of the Trust pursuant to clause 3.6(1) of the deed and Public Trust is now the only trustee.

[4] Public Trust brings this proceeding seeking an order under the Trustee Act 1956 vesting the Land in it on the grounds that it is expedient to do so. The order is required because Land Information New Zealand will not recognise its ownership of the Land, as sole trustee, without it.

[5] The applicant seeks leave to bring this proceeding as an Originating Application under Part 19 of the High Court Rules 2016, and to have this application determined on the papers.

[6]I am satisfied on the affidavit evidence filed that:

(a)Winifred no longer has the capacity to fulfil her duties as registered proprietor and transfer the title in the Land to the Public Trust.

(b)There are no interested parties on whom service of the application is necessary or appropriate.

(c)Because the proceeding does not involve any disputed questions of fact and there is no opposing party, it is not necessary in the interests of justice for there to be a particularised pleading or to follow the usual interlocutory steps involved in a civil proceeding.

(d)The vesting order sought under s 52 of the Trustee Act should appropriately be made.

[7]Accordingly, I order:

(a)The proceeding may be commenced by Originating Application under Part 19 of the High Court Rules 2016 and service of the proceeding on any person shall be dispensed with.

(b)Under s 52(1)(h) of the Trustee Act 1956, the Land contained in CFR NA108B/984, North Auckland, shall be vested in Public Trust.

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

Toogood J

CaseChat Overview and Summary

The High Court of New Zealand, Whangarei Registry, dealt with an application by the Public Trust to obtain a vesting order in respect of a property. The applicant, Public Trust, sought the vesting order as it was the sole trustee of the Shipton Family Trust, which held the title to the property. The property in question, situated in North Auckland, was held by the Public Trust, Ronald Peter Shipton, and Winifred Shipton as trustees of the Shipton Family Trust. Ronald Shipton had passed away, and the respondent, Winifred Shipton, who suffered from advanced dementia, was unable to manage her affairs and the affairs of the Trust. The Public Trust sought the vesting order to resolve issues with Land Information New Zealand not recognising its sole trustee status without such an order.

The central legal issue before the court was whether the Public Trust should be granted a vesting order for the property, as the sole trustee of the Shipton Family Trust. This required consideration of the Trustee Act 1956, which governs the vesting of property in trustees. Additionally, the court had to determine whether the application could be heard on the papers, without the need for a hearing or oral submissions, due to the absence of any disputed questions of fact and the lack of an opposing party.

The court found that the application could proceed as an Originating Application under Part 19 of the High Court Rules 2016, and that it was appropriate to determine the application on the papers. The court was satisfied that Winifred Shipton lacked the capacity to manage the property and her affairs, and that there were no interested parties requiring service of the application. Furthermore, the court held that it was not necessary for there to be a particularised pleading or to follow the usual interlocutory steps involved in a civil proceeding due to the absence of any opposing party and the lack of disputed questions of fact. The court also found that the vesting order sought under section 52 of the Trustee Act 1956 should be made.

Accordingly, the court granted the Public Trust's application and ordered that the proceeding may be commenced by Originating Application under Part 19 of the High Court Rules 2016. The court also ordered that the property, contained in CFR NA108B/984, North Auckland, be vested in Public Trust under section 52(1)(h) of the Trustee Act 1956.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	Part 19 of the High Court Rules and the Trustee Act 1956
IN THE MATTER	of an application for a vesting order in respect of land
BETWEEN	PUBLIC TRUST as trustee of the SHIPTON FAMILY TRUST Applicant
AND	WINIFRED SHIPTON Respondent

On the papers
Appearances:	J Gandy for Applicant
Judgment:	27 February 2019