Re Hooper

[2021] NZHC 576

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-76

[2021] NZHC 576

UNDER

Section 112 Trusts Act 2019

IN THE MATTER

of ZURICH OAK TRUST

BETWEEN

CORRINA JOANNE HOOPER

Applicant

AND

Hearing:	(Determined on the papers)
Counsel:	V A Nichols for the Applicant
Judgment:	19 March 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 19 March 2021 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 19 March 2021

RE HOOPER v [2021] NZHC 576 [19 March 2021]

[1]                 The applicant, Corrina Hooper, seeks leave to use the originating application procedure under pt 19 of the High Court Rules 2016 (the Rules) for the proceeding.

[2]                 Ms Hooper seeks orders that she be removed as trustee of the Zurich Oak Trust (the Trust) pursuant to s 112 of the Trusts Act 2019 (the Act).

[3]                 Leave is required as applications under s 112 of the Act may not be commenced as of right under pt 19. Leave may be granted by the Court under r 19.5 of the Rules if such is in the interests of justice. The interests of justice mean the Court must secure the just, speedy and inexpensive determination of the proceeding.1

[4]                 This application is brought as Ms Hooper became trustee of the Trust while she was  living   with   another   trustee,   Mr Surch.  The   trustees   are   Mr Surch   and a Mr Dale Wadsworth (also known as Dale Mainwaring), along with Ms Hooper.

[5]                 In 2016, Ms Hooper and Mr Surch separated and a relationship property agreement was entered into in mid-2016. The property relationship agreement recorded that Ms Hooper would resign as trustee and a deed of retirement was prepared to give effect to this agreement. The agreement was signed by Mr Surch and Ms Hooper but has not been signed by Mr Wadsworth, who I am told has refused to sign. In clarifying the position with Ms Nichols (counsel for Ms Hooper), it seems Mr Wadsworth has not responded to requests to sign the deed of retirement, nor has Mr Surch signed the documents required in order to remove Ms Hooper’s name from titles to properties held by the Trust.

[6]                 Given those circumstances, I am satisfied it is appropriate that leave be given for use of the originating application procedure. Counsel’s understanding is that discovery and other interlocutory applications appear to be well founded.

[7]                 The remaining trustees have not raised grounds as to why they are not co-operating in completing Ms Hooper’s removal. That said, they should be named as respondents on the proceeding as relief is sought against them.

1      Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26], citing High Court Rules 2016, r 1.2.

[8]                 I note the originating application for which leave is sought does contemplate that it will be on notice to Mr Surch and Mr Wadsworth, but they should be named as respondents on the proceeding. An amended cover sheet for the application is to be provided.

Associate Judge Lester

Solicitors:
Saunders & Co, Christchurch