IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2020-441-57
[2020] NZHC 2008
UNDER the Trustee Act 1956 IN THE MATTER
of a certain Deed of Trust dated 27 May 1999 between COLLEEN JEFFRIES as
Settlor and KIRK ROBERT DOYLE as First Trustee and JEREMY FRANCIS GRESSON as Second Trustee (the Trust Deed) establishing the Colleen Jeffries Family Trust (the Trust)
AND IN THE MATTER
of an application for the removal of existing trustee and appointment of new trustee of the Trust
AND IN THE MATTER
of an application to vary the terms of the Trust Deed to vest the power of appointment and removal of trustees in the Trustees for
the time being of the Trust
AND IN THE MATTER
upon the making of an Order to remove and appoint a new trustee, of an application to vest any land held by the Trust in the trustees of the Trust
BETWEEN
COLETTE ISOBEL RILEY
Applicant
AND
COLLEEN JEFFRIES
First Respondent
COLLEEN JEFFRIES AND JUSTINE ENID OWEN
Second Respondent
Hearing: On the papers Appearances:
C D Bennett for the Applicant
Judgment:
10 August 2020
RILEY v JEFFRIES [2020] NZHC 2008 [10 August 2020]
JUDGMENT OF COOKE J
[1]By applications dated 5 August 2020 the applicant seeks orders:
(a)For leave that these proceedings be commenced by originating application.
(b)Dispensing with service on any other parties.
(c)Dispensing on the requirement to appoint a litigation guardian.
(d)Removing the first respondent, Colleen Jeffries as a trustee of the Colleen Jeffries Family Trust pursuant to s 51 of the Trustee Act 1956.
(e)Vesting the property at 4a Mackenzie Avenue, Marewa, Napier in Colette Isobel Riley and Justine Enid Owen as trustees of the Colleen Jeffries Family Trust.
[2] The applications are supported by affidavits from the applicant, Colette Riley sworn 5 August 2020 and her sister Justine Owen sworn 27 July 2020.
The circumstances
[3] The Colleen Jeffries Family Trust was settled by Mrs Jeffries on 27 May 1999 with herself and two others as trustees. Over time trustees have retired and been replaced under the Deed, with the current trustees being Mrs Jeffries and Justine Owen.
[4] Mrs Jeffries had four children, the applicant (Ms Riley), Ms Owen, Ms Andree Dick and Mr Martin Dick. In her affidavit Ms Riley explains that Mrs Jeffries now has dementia and has lost capacity to manage her personal and property matters. This is confirmed in Ms Owen’s affidavit. Consents to the orders from the other children, and also to Mrs Jeffries former husband, Mr Murray Jeffries have been provided.
[5] The primary asset of the Trust is the property referred to above, and Ms Riley explains that Mrs Jeffries is now in residential care. Ms Owen explains that it is now appropriate to sell the house.
Orders to be made
[6] The applications for proceedings of this kind to be commenced by originating application, and without service or the appointment of a litigation guardian are routine, and I give…
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- AGLC
- Riley v Jeffries [2020] NZHC 2008
- Case
- [2020] NZHC 2008
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the court could remove a trustee who is suffering from dementia and whether the court could vest land held by the trust in the trustees of the trust. The court considered sections 51 and 52 of the Trustee Act 1956, which provide for the removal of trustees and the vesting of land in trustees, respectively. The court noted that section 51(2)(c) specifically provides for the removal of a trustee who is a mentally disordered person, but this does not preclude the court from exercising its power under section 51(1) in appropriate circumstances. The court also noted that section 52(1)(b) provides for the vesting of land in trustees where a former trustee is no longer capable but remains on the title.
The court found that it was appropriate to remove Colleen Jeffries as a trustee and to vest the property in Colette Isobel Riley and Justine Enid Owen as trustees of the trust. The court also found that it was not appropriate to vary the terms of the trust deed to vest the power of appointment and removal of trustees in the trustees for the time being of the trust, as it was unlikely that the family would find themselves in a similar position in the future.
The court made the orders sought by Ms Riley, removing Colleen Jeffries as a trustee and vesting the property in Colette Isobel Riley and Justine Enid Owen as trustees of the trust. The court did not make the order sought by Ms Riley to vary the terms of the trust deed, as it was not appropriate to do so in the circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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