Riley v Jeffries - [2020] NZHC 2008

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Riley v Jeffries

Details

AGLC: Riley v Jeffries [2020] NZHC 2008
Case: [2020] NZHC 2008
Decision Date: 10 August 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Napier Registry, Colette Isobel Riley applied for the removal of Colleen Jeffries as a trustee of the Colleen Jeffries Family Trust and for her own appointment as a trustee. The application was supported by affidavits from Ms Riley and Justine Enid Owen. Colleen Jeffries had established the trust in 1999 with herself and two others as trustees. Colleen Jeffries now suffers from dementia and has lost the capacity to manage her personal and property matters, and she is in residential care. Ms Riley explained that it was now appropriate to sell the house, which is the primary asset of the trust.

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