Ringham

[2016] NZHC 1808

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2016-419-255 [2016] NZHC 1808

IN THE MATTER

of section 52 of the Trustee Act 1956

IN THE MATTER

of an application by:

SANDRA LEE RINGHAM teaching fellow, and CAROLINE RINGHAM retired, both of Hamilton, for an order vesting the estate in land at Lot 2 DP

320464, 9b Cross Street, Raglan, Identifier

81206, South Auckland Land Registration District in Sandra Lee Ringham and Caroline Ringham, as trustees of the Sandra Lee Trust

Hearing:

On the papers with telephone conference on 5 August 2016 at

10.35 am

Counsel:

W Pyke for the Applicants

Judgment

5 August 2016

JUDGMENT OF MUIR J

This judgment was delivered by me on 5 August 2016 at 2.30 pm

Pursuant to Rule 11.5 of the High court Rules.

Registrar/Deputy Registrar

Date:…………………………

Counsel/Solicitors:

W Pyke, Barrister, Auckland

B Bluett, Barrister & Solicitor, Hamilton

Re an application by S L Ringham for vesting orders [2016] NZHC 1808 [5 August 2016]

[1]      Sandra Lee Ringham (Sandra) and Caroline Ringham (Caroline) are, together with Sandra’s father and Caroline’s husband, Neil Henry Ringham (Neil), trustees of the Sandra Lee Family Trust.  That Trust was established in August 2006 to manage assets on behalf of Sandra and her children.  Living beneficiaries are Sandra, her son Trent Ringham-Olsen (born 23 September 1994) (Trent) and her daughter Savanah Lee Watkin (born 21 December 1999) (Savanah).

[2]      Neil now suffers from severe disability.  On 29 June 2016 orders were made in  the  Family  Court  at  Hamilton  under  s 12  of  the  Protection  of  Personal  and Property Rights Act 1988 (PPPRA) appointing another of his daughters, Coral Joan Wiki to be his welfare guardian.  On the same date the Family Court made orders under s 31 of the PPPRA appointing Ms Wiki, Sandra and Caroline as property managers of all of Neil’s property.   This was on the basis of medical evidence confirming, inter alia, senile dementia. The same evidence confirmed that his lack of competence to manage his own affairs in relation to property was “total”.

[3]      The applicants seek orders vesting in them a property owned by the trustees of the Sandra Lee Family Trust located at 9b Cross Road, Raglan being Lot 2 DP

320464, Identifier 81206, South Auckland Land Registration District.  This property was sold by agreement dated 25 June 2016 and is scheduled for settlement on 24

August 2016.   A vesting order is required because neither of the PPPR Act, the Property Law Act 2007 or the Land Transfer Act 1952 permit execution of a transfer on behalf of a trustee under disability.1    The circumstances of the sale necessitate consideration of the application on an urgent basis.

[4]      In terms of procedure,  the applicants also seek  permission to commence proceedings by way of originating application and for directions dispensing with service on or representation for Neil.

[5]      The application is supported by joint affidavits of the applicants who depose

to Neil’s medical condition and the circumstances of the application.   It is also

supported by a joint affidavit by Sandra’s children in their capacity as beneficiaries

1      See Andrew Butler (ed) Equity and Trusts (2nd  ed, Brookers, Wellington, 2009) at [5.2.9] and

Trustee 1956, ss 47, 52.

of the Trust.  I note, however, that Savanah has not yet attained the age of majority. Her consent is noted but, having regard to her status as a discretionary beneficiary of the Trust I do not regard it as essential to granting of the order sought.

Directions as to service or representation

[6]      In the circumstance I agree it is appropriate to dispense with service on Neil. However, I note that Ms Wiki, as the third of Neil’s property managers and his welfare guardian, appears neither to have been served with nor to have otherwise engaged in the proceedings.   Section 43(6) of the PPPRA prescribes that property managers are to consult on a regular basis with any welfare guardian who may be appointed, and there is no apparent basis on which a majority of property managers may bind a minority.   That said the relevant interest in this case is a base legal interest, subject to the Trust.

[7]      In my view the appropriate course is for Ms Wiki to be served with the application and supporting affidavit but, in anticipation of her consent, for the substantive application to be addressed now on the basis that any orders lie in court pending receipt of that consent.

Permission to commence proceeding by way of originating application

[8]      Under r 19.5 the Court may, in the interests of justice, permit any proceeding not mentioned in rr 19.2 to 19.4 to be commenced by originating application.  Such order is in my view appropriate.  I note the Court has granted permission in a number of similar situations including Goulevitch and Parkes as Trustees of the Iris and Joe

Parkes Family Trust v Parkes2 and Scowen v Scowen.3

The vesting order

[9]      The application proceeds under s 52 of the Trustee Act 1956 (the Act) which relevantly refers to applications by co-trustees where an existing trustee is under

disability (refer ss 52(b)(i) and (3)).

2      Goulevitch v and Parkes as Trustees of the Iris and Joe Parkes Family Trust v Parkes [2014] NZHC 1571.

3      Scowen v Scowen [2014] NZHC 1901.

[10]     I am satisfied that Mr Neil Ringham is “under disability” within the terms of the Act.

[11]     There are no discretionary factors which would militate against the making of an order and, having regard to the unconditional agreement for sale and purchase entered into in respect of the property, it is demonstrably in the interests of the Trust.

Result

(a)      I grant permission to commencing the proceeding as an originating application.

(b)      I dispense with orders as to service of the proceeding on Neil Henry

Ringham.

(c)      I order that the application, supporting affidavits and memorandum of counsel dated 1 August 2016 be served on Carol Joan Wiki of 50B Upper Wainui Road, Raglan.

(d)I make orders vesting in Sandra Lee Ringham and Caroline Ringham the  property  located  at  9b  Cross  Street,  Raglan  being  Lot  2  DP

320464 Identifier 81206, South Auckland Land Registration District.

(e)      I reserve leave to apply in the event further orders are required.  Such application may be made by memorandum.

(f)      I direct that the order made in (d) above is to lie in court pending receipt by the Registrar of a signed and witnessed consent to the order by Carol Joan Wiki.

(g)      The costs and incidentals of this application are to be paid out of Trust

funds.

Muir J