Ritchie v Ritchie - [2019] NZHC 2605

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV 2019-441-000069

[2019] NZHC 2605

UNDER The Trustee Act 1956 and the Court’s inherent jurisdiction

IN THE MATTER OF

The IJ and GE Ritchie Family Trust

BETWEEN

IAN JAMES RITCHIE and NAPIER TRUSTEE SERVICES 104 LIMITED

Plaintiffs

AND

GLENNIS ELIZABETH RITCHIE

Defendant

Hearing:
In Chambers

Determined on the papers

Counsel:

M J Inwood for the Plaintiffs

No appearances for the Defendant

Judgment:

14 October 2019

JUDGMENT OF GWYN J

[Service and Representation]

This judgment was delivered by me on 14 October 2019 at 1pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
Carlile Dowling Lawyers, Napier

RITCHIE and NAPIER TRUSTEE SERVICES 104 LIMITED v RITCHIE [2019] NZHC 2605 [14 October 2019]

Introduction

[1] The matter before me is an application for orders dispensing with the service of an application brought under Part 18 of the High Court Rules and s 52 of the Trustee Act 1956 in relation to the IJ and GE Ritchie Family Trust (the Trust). The trustees of the Trust are the plaintiffs, Ian James Ritchie (Mr Ritchie) and Napier Trustee Services 104 Limited, together with Glennis Elizabeth Ritchie (Mrs Ritchie).

[2] Mr Ritchie and Napier Trustee Services 104 Limited bring the application because Mrs Ritchie has been assessed as lacking the mental capacity to continue as a trustee of the Trust. Dr Terence de Silva attended on Mrs Ritchie on 16 September 2019 to assess her mental capacity for carrying out her role as a trustee of the Trust and concluded then that she lacks the mental capacity to act as a trustee of the Trust.

[3] Mr Ritchie holds an enduring Power of Attorney in relation to Mrs Ritchie’s property affairs pursuant to the Protection of Personal and Property Right Act 1988.

[4]The Trust was settled on 20 September 1998. The beneficiaries of the Trust are:

a) Mrs Ritchie;

b) Mr Ritchie;

c) Their children;

d) Their children’s children; and

e) Any Trust which includes for the time being, among its beneficiaries any of the above beneficiaries.

[5]The Trust’s main assets are:

a) A house at 236 Poraiti Road, RD2, Napier, described in Record of Title Identifier HBW1/703 (the Trust property);

b) Stocks and bonds; and

c) Bank accounts and term deposits.

[6] The plaintiffs wish to sell the Trust property and put the proceeds into the Trust investments and/or a new Trust property.

[7]The plaintiffs are unable to sell the Trust property because:

a) Mrs Ritchie does not have the mental capacity to sign the transfer documents for the Trust property; and

b) Land Information New Zealand will not accept a transfer of ownership signed by Mrs Ritchie’s attorney.

[8]Accordingly, the plaintiff’s statement of claim seeks orders:

a) Removing Mrs Ritchie as a trustee on the grounds that she lacks the mental capacity to continue as a trustee;

b) An order vesting the Trust property in the remaining trustees; and

c) An…

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 Ritchie v Ritchie

Details

AGLC: Ritchie v Ritchie [2019] NZHC 2605
Case: [2019] NZHC 2605
Decision Date: 14 October 2019

CaseChat Overview and Summary

The case of Ritchie v Ritchie involved a dispute over the IJ and GE Ritchie Family Trust, with Ian James Ritchie and Napier Trustee Services 104 Limited, as trustees, seeking to remove Glennis Elizabeth Ritchie as a co-trustee due to her lack of mental capacity. The plaintiffs aimed to sell the Trust's primary asset, a house, and invest the proceeds into the Trust's other assets or a new property. However, they were unable to proceed as Mrs Ritchie lacked the mental capacity to sign the necessary transfer documents, and Land Information New Zealand would not accept a transfer signed by her attorney.

The court was required to decide two primary issues. The first was whether to dispense with the service of the proceedings on Mrs Ritchie and her attorney, given her lack of capacity to participate in the litigation. The second issue was whether a litigation guardian should be appointed to represent Mrs Ritchie's interests in the proceedings, as required by Rule 4.30 of the High Court Rules 2016, considering that no relief adverse to her interests was sought.

The court found it appropriate to dispense with the service of the proceedings on Mrs Ritchie and her attorney, as the application was uncontentious, and all other beneficiaries consented to the substantive orders sought. The court also determined that there was no need for a litigation guardian, as the proceedings did not seek any relief adverse to Mrs Ritchie's interests, and such an appointment would not serve any useful purpose in this context. The court referred to similar cases where the appointment of a litigation guardian was deemed unnecessary. Consequently, the court ordered that service of the proceedings be dispensed with entirely, no other person needed to be served, and Mrs Ritchie did not require a litigation guardian or other representative.

The court's orders included dispensing with the service of the proceedings on Mrs Ritchie and her attorney, specifying that no other persons need be served, and that Mrs Ritchie does not need to be represented by a litigation guardian. The proceedings were to be dealt with on the papers, and evidence was to be submitted by way of affidavits. The substantive application was to be placed in the Duty Judge List for consideration.

Orders