Public Trust v Tate

[2020] NZHC 166

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2020-419-23

[2020] NZHC 166

UNDER

Section 52 of the Trustee Act 1956

BETWEEN

PUBLIC TRUST as administrator of the Estate of Kenneth Tate of Hamilton (Deceased)

Applicant

AND

BETTY MAE TATE

First Respondent

JANICE MAE SARGENT

Second Respondent

Hearing:	On the papers
Appearances:	A Habershon for the Applicant
Judgment:	14 February 2020

JUDGMENT OF MUIR J

This judgment was delivered by me on Thursday 14 February 2020 at 10.30 am Pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:

Public Trust, Christchurch

PUBLIC TRUST v TATE [2020] NZHC 166 [14 February 2020]

Introduction

[1]The Public Trust makes application for orders:

(a)That proceedings be commenced by way of originating application under Part 18 of the High Court Rules.

(b)Dispensing with service on Betty Mae Tate (Mrs Tate), Janice Mae Sargent (Ms Sargent) and the discretionary beneficiaries of the estate.

(c)Substantively:

(i)removing the names of Mrs Tate and Ms Sargent from the title to the property at 99 Baverstock Road, Hamilton (record of title SA63A/24); and

(ii)vesting the title in the name of the Public Trust.

Background

[2]                On 14 October 1997 the probate of the last will of Mr Kenneth Tate (the deceased) was granted to Mrs Tate, who is the deceased’s widow, and Ms Sargent, who is his daughter. They were the executors named in the will.

[3]                Mrs Tate is no longer competent to manage her own affairs having been diagnosed with dementia.

[4]On 23 January 2018 the Public Trust was appointed as her property manager.

[5]                On 5 August 2019 an order was made in the High Court discharging Mrs Tate and (by consent) Ms Sargent as administrators of the estate and appointing the Public Trust in their stead.

[6]                The Public Trust now wishes to sell the estate property at 99 Baverstock Road (the property). This had formerly been occupied by Mrs Tate but she is now in more suitable accommodation.

[7]                The sale cannot be completed without the land first being vested in the name of the Public Trust.

[8]                Ms Sargent consents to the application and all of the residuary beneficiaries (comprising Ms Sargent and her siblings) consented to the Public Trust appointment as administrator. All are also sui juris.

[9]                I accept the submissions of counsel that it is not possible for a transfer of the property to be effected without a prior vesting order in favour of the Public Trust.

[10]            I am satisfied that, having regard to the order of this Court discharging Mrs Tate and Ms Sargent as administrators, a vesting order is appropriate.

[11]            I am also satisfied that having regard to Ms Sargent’s consent, the earlier consent of the discretionary beneficiaries and the  current  medical  condition  of  Mrs Tate, service of the interlocutory application is unnecessary.

[12]            I am further satisfied that the matter is appropriately commenced by way of originating application. Similar applications are routinely dealt with in this way by the High Court.

Result

[13]            I grant leave for the proceedings to be commenced by way of originating application.

[14]            I dispense with service on Betty Mae Tate, Janice Mae Sargent and the discretionary beneficiaries of the estate.

[15]            I direct that the names of Betty Mae Tate and Janice Mae Sargent be removed from the title of the property at 99 Baverstock Road, Hamilton (record of title SA63A/24).

[16]I vest title to the said property in the name of the Public Trust.

Muir J