Robert Burns Trustee (2009) Limited v Jamieson

[2017] NZHC 1905

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2017-470-000101 [2017] NZHC 1905

BETWEEN

ROBERT BURNES TRUSTEE (2009)

LIMITED Applicant

AND

RAE JULIAN JAMIESON AND ROBERT BURNES TRUSTEE (2009) LIMITED

Respondents

Hearing:	(On the papers)
Counsel:	John Cox for the Applicant
Judgment:	11 August 2017

JUDGMENT OF MOORE J

This judgment was delivered by me on 11 August 2017 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

ROBERT BURNES TRUSTEE (2009) LIMITED v JAMIESON & ANOR [2017] NZHC 1905 [11 August 2017]

[1]      Rae Julian Jamieson (“Ms Jamieson”) is the settlor and appointor and one of the trustees of the Rae Jamieson Trust (“the Trust”).   The other trustee is Robert Burnes Trustee (2009) Limited who is the applicant.

[2]      Ms Jamieson has been diagnosed with dementia.  As a consequence she is no longer mentally capable of performing her responsibilities as a trustee.   This incapacity also extends to her inability to resign as a trustee and/or appoint a successor.

[3]      Before her dementia diagnosis, Ms Jamieson granted an enduring power of attorney in favour of her accountant, Mr McGuire.

[4]      Mr Cox, counsel for the applicant, has helpfully drawn my attention to a recent decision of Nation J, of this Court, in Godfrey v McCormick.1    As a consequence of that decision Mr Cox regards it as impermissible for Mr McGuire to use the enduring power of attorney to cause Ms Jamieson to resign as a trustee or for him to appoint himself or a corporate trustee he nominates as a new trustee in substitution for Ms Jamieson.  More significantly, Mr Cox regards himself as unable to execute an authority and instruction form to transfer title in the trust’s property at

46 Queen Street, Te Puke (the “Te Puke property”) to a new successor trustee.  On the authority of Godfrey v McCormick an application to this Court is required to achieve that purpose.

[5]      I agree with the reasoning of Nation J in Godrey v McCormick and the effect of that judgment.   In particular, I agree that applications to remove a trustee who lacks capacity, the appointment of a new trustee and any transfer of title in land belonging to that trust or the new trustee:

(a)       may be determined by way of originating application subject to an application under r 19.7 of the High Court Rules;

(b)      may be determined “on the papers”; and

1      Godfrey v McCormick [2017] NZHC 420, [2017] 3 NZLR 198.

(c)      may be determined without requiring the application to be served on the trustee who is no longer mentally capable of performing their role as a trustee because such service would be of no useful purpose.

[6]      Mr McGuire has filed an affidavit confirming that he holds an enduring power of attorney for Ms Jamieson.   He also deposes to Ms Jamieson’s mental incapacity and attaches a report of Dr Elaine Pooler, dated 10 May 2017, which confirms that Dr Pooler has assessed Ms Jamieson and is of the opinion she is mentally incapable because she is not wholly competent to manage her own affairs in relation to her property and finances.  This is because her cognitive and short term memory is impaired to such an extent that Dr Pooler is of the view that she is extremely vulnerable to financial abuse and manipulation.

[7]      Mr McGuire has incorporated a company, Rae Jamieson Trustee Limited (“the Company”) of which he is the sole director and shareholder.  He nominates that Company to act as the new trustee.

[8]      An affidavit has also been filed by Robert Norman Burnes.  This briefly sets out the background to the appointment of the Robert Burnes Trustee (2009) Limited as a trustee of the Trust.  He also deposes that the assets of the Trust comprise of monies held in interest bearing trust accounts with Mr Burnes’ firm, Robert Burnes

& Associates, of approximately $148,000 and the Te Puke property which is unencumbered.

[9]      Accordingly I make the following orders:

(a)     permitting the proceeding to commence by way of originating application;

(b)      dispensing  with  the  service  of  the  proceedings  on  Rae  Julian

Jamieson;

(c)       removing Rae Julian Jamieson as a trustee of the Rae Jamieson Trust;

(d)      appointing Rae Jamieson Trustee Limited as the new trustee of the

Rae Jamieson Trust; and

(e)      vesting title in the property registered in the names of Rae Julian Jamieson and Robert Burnes Trustee (2009) Limited  at 46 Queen Street, Te Puke, Certificate of Title SA 28A/471 in Rae Jamieson

Trustee Limited and Robert Burnes Trustee (2009) Limited.

Moore J