Restieaux v Hogg

[2020] NZHC 3071

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2020-483-13

[2020] NZHC 3071

UNDER

the Trustee Act 1956

IN THE MATTER

of the Beverley Hogg Family Trust

BETWEEN

MAX HAROLD RESTIEAUX

Plaintiff

AND

BEVERLEY HOGG and MAX HAROLD RESTIEAUX

Defendants

Hearing:

18 November 2020

Appearances:

E J Unsworth for plaintiff

No appearance by or for defendants

Judgment:

20 November 2020

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]    This is an application by the trustees of the Beverley Hogg Trust, Mr Peter Russell and Ms Fiona Benefield (the oldest of Mrs Beverley Hogg’s four children) and Mr Max Restieaux, a Whanganui solicitor and independent trustee, for an order pursuant to s 51 of the Trustee Act 1956 vesting the principal – and it would appear only – asset of the trust, a property at 14a Springvale Road in Whanganui, in the trustees to be held by them jointly pursuant to the terms of the deed of trust.

[2]    The background is recorded in a memorandum filed with the originating documentation by counsel for the plaintiff, Mr Unsworth, in support the plaintiff’s application for directions as to service:

RESTIEAUX v HOGG [2020] NZHC 3071 [20 November 2020]

1.Beverley Hogg (“Beverley”) created the Beverley Hogg Family Trust (“the Trust”) by Deed of Trust dated 20 March 2003.

2.Beverley is the Settlor of the Trust as well as the Appointor. Beverley and the Plaintiff were the original trustees of the Trust.

3.Beverley suffers from alzheimer’s disease and as such lacks the capacity to perform her duties as a trustee of the Trust;

4.The minimum number of trustees for the Trust is two (clause 12.2(d)).

5.Pursuant to clause 13 of the Deed of Trust Beverley has the power of appointment of new trustees.

6.The Plaintiff cannot operate the Trust in isolation.

7.The Trust is the registered proprietor of 14a Springvale Road, Whanganui with a legal description of estate in fee simple as to a 1/3 share in Lot 2 DP57253 containing 1029 m² and leasehold estate pursuant to Lease No. 707544.2 known as Flat 2 and Garage 2 DP58452, all contained in Identifier WN27C/27 (“the property”).

8.Beverley no longer resides in the property and is a resident of Summerset Rest Home in Whanganui.

9.The property needs to be sold because Beverley will not be returning home.

10.On 27 February 2020 a Deed of Retirement and Appointment pursuant to s 43 of the Trustee Act 1956 (“the Act”) was signed by the Plaintiff, thereby removing Beverley as a trustee and appointing Peter Russell and Fiona Wendy Benefield as new trustees alongside the Plaintiff.

11.Beverley has an Enduring Power of Attorney (“EPOA”) in Relation to Property in favour of Peter and Fiona. That EPOA has been enacted.

12.Beverley has a current Will (23 December 2010) which appoints Peter and Fiona as her Trustees and leaves her residuary estate equally to her four children.

13.The beneficiaries of the Trust are Beverley, her children and grandchildren (amongst others).

14.Beverley’s four children are:

(a)Fiona Wendy Benefield, 22 Pengover Avenue, Leamington, Cambridge 3432 (“Fiona”).

(b)Peter Russell, 123 Coast Road, Karitane, Waikouaiti 9472, (“Peter”).

(c)Jacqueline Kay Hogg, Oasis Motel, 1812 Great North Road, Whanganui 4501, (“Jacqui”).

(d)Gerald Hogg of 15 Minster Close, Taunton, Somerset, UK, TA14LB, (“Gerald”).

15.Beverley has 6 grandchildren:

(a)Will Gerald Benefield

(b)Reilly Thomas Benefield

(c)Jay Donald Benefield

(d)Benjamin Alexander Peter Russell

(e)Nadeem Wali

(f)Lucy Rebekah Hogg

16.Service of this proceeding on Fiona, Peter, Jacqui and Gerald will ensure they and Beverley’s six grandchildren are adequately represented by their respective parents.

[3]    Her Honour Justice Clark dealt with the application for directions as to service and issued the following directions on 23 April 2020:

1.Having read the statement of claim, interlocutory application and memorandum in support of the interlocutory application for directions as to service, the following order is made:

2.The notice of proceeding and statement of claim are to be served on:

(a)Peter Russell and Fiona Wendy Benefield, in their capacities as trustees (alongside the plaintiff) of the Beverley Hogg Family Trust; and

(b)On the basis that the interests of Beverley’s six grandchildren, who are also beneficiaries of the Family Trust, will be adequately represented by their respective parents – on Beverley’s four children named in [14] of the memorandum of counsel filed in support of the interlocutory application.

[4]    Accordingly, what the plaintiff was required to do was serve the two trustees who were not named  plaintiffs  (Peter  Russell  and  Fiona  Benefield)  and  Beverley Hogg’s four children. Those directions were predicated on the basis that Beverley Hogg’s four  children  could  represent  the  interests  of  their  children  Mrs Beverley Hogg’s six grandchildren.

[5]    There is now affidavit evidence before the Court that service on all necessary parties has been effected. None of Mrs Beverley Hogg’s children have entered a defence on their own behalf or on behalf of their children. Furthermore, the Court has Mr Unsworth’s assurance that all members of the family support the application (in their various capacities) so that the order sought may be made by consent.

[6]    Essentially, all that is happening here is that the Court is being asked to regularise the ownership of the property owned by the trustees. That is necessary only because, as Mr Unsworth correctly says, an attorney appointed pursuant to an enduring power of attorney cannot vest land when a trustee is incapacitated. That can only be done by a High Court order pursuant to s 52(1)(b)(i) of the Trustee Act 1956.

[7]    I make the order sought as set out in the plaintiff’s prayer for relief in his statement of claim.

[8]No costs orders are sought.

Associate Judge Johnston

Solicitors:
Horsley Christie, Whanganui for plaintiff