Re Brown

[2012] NZHC 2081

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2012-409-000988 [2012] NZHC 2081

IN THE MATTER OF     An application under s 133 of the Land

Transfer Act 1952

BETWEEN  STEPHEN DAVID BROWN AND JOHN ANTHONY CALLAGHAN AS TRUSTEES OF THE HAZEL BROWN FAMILY TRUST

Applicants

Hearing:         (On papers)

Counsel:         B J Callaghan for Applicants

Judgment:      16 August 2012

JUDGMENT OF WHATA J

[1]      This is an application, without notice, for orders under s 133 of the Land Transfer Act 1952 to enable the applicants as surviving trustees of the Hazel Brown Family Trust to be registered as the registered proprietors of the land to enable them to dispose of it in the winding up and the distribution of the trust.  The application is supported by an affidavit of John Anthony Callaghan.  In that affidavit he deposes to the following matters:

(a)      He is one of the registered proprietors of land along with Hazel Joyce Brown  and Stephen  David Brown in Computer Freehold Register CB47B/683.

(b)He says they are proprietors by virtue of the fact that they are trustees of the Hazel Brown Family Trust, a trust established by Deed of Trust

dated 13 February 2000.

Estate of BROWN HC CHCH CIV 2012-409-000988 [16 August 2012]

(c)       The title was registered with the words “no survivorship” pursuant to

s 130 of the Land Transfer Act 1952.

(d)It became apparent that there might be difficulties dealing with the property in the event of any change in the trustees and the like and the registered proprietors transferred the property to themselves as joint tenants and deleted the words “no survivorship.”

(e)      Ms Brown died on 31 March 2012 and as a result an application was made to register the transmission to the surviving joint owners. However, this has been prevented because the Land Registry records have a notation of the title as tagged with “no survivorship.”

(f)       Surviving trustees in consultation with members of the family have decided to wind up the family trust and distribute the same to the beneficiaries named in the trust.

[2]      Having regard to the guidance afforded to me by the decision of Re Bayly[1] I

[1] Re Bayly (1985) 2 NZCPR 363.

issued a minute requesting the following material: (a) How many beneficiaries there are;

(b)       Whether any beneficiaries are minors;

(c)      Whether all beneficiaries were consulted about and agreed to, the winding up of the Trust;

(d)Whether all beneficiaries agreed to the sale of the property to one beneficiary;

(e)      Whether distributions are being made to all beneficiaries and if so, how much is to be distributed to each.

[3]      I received a memorandum of counsel confirming the following matters:

...

2.We confirm that the primary beneficiaries of the Trust are the adult children of the deceased namely Stephen David Brown, Colin Douglas Brown and Marilyn Joyce McClure.   In addition to the children of the deceased settlor there are also eight grandchildren of the deceased.   All of these beneficiaries have obtained the age of majority.

3.All  of  the  beneficiaries  were  consulted  and  have  agreed  to  the winding up of the Trust on the sale of the trust property to Marilyn, one of the capital beneficiaries.

4.All  of  the  primary  beneficiaries  have  agreed  to  the  sale  of  the property to Marilyn.

5.On completion of the sale of the trust property which is the only asset of the Trust, the Trustees intend to make a  distribution of

$121,000.00 to each of them the primary beneficiaries.

6.Counsel would be obliged if the Court can advise if there is any further information it requires at this stage.

[4]      Given the foregoing confirmation, I am satisfied that an order should be granted in the terms sought.  I make that order subject to the filing of an affidavit in the  proper  form  confirming  the  matters  outlined  to  me  in  the  memorandum  of counsel.

Solicitors:

McGillivray Callaghan & Co, Christchurch