Roberts v Brown

[2020] NZHC 3077

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CIV-2020-476-30

[2020] NZHC 3077

BETWEEN

MURRAY GEORGE ROBERTS

Applicant

AND

MARGARET ANN BROWN and MURRAY GEORGE ROBERTS

Respondents

Hearing:	(Determined on the Papers)
Counsel:	P C Dalziel for the Applicant
Judgment:	20 November 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 20 November 2020 at 2.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 20 November 2020

ROBERTS v BROWN [2020] NZHC 3077 [20 November 2020]

[1]        The applicant, Murray George Roberts (Mr Roberts), seeks the following orders:

(i)leave to bring the present application by way of originating application;

(ii)dispensing with service on the respondent, Margaret Ann Brown  (Mrs Brown);

(iii)dispensing with the need for Mrs Brown to have a litigation guardian; and

(iv)a vesting order in respect of a property at 17 Wilkin Street, Temuka .

Background

[2]        The Paul and Margaret Brown  Family  Trust  (the  Trust)  was  settled  on  22 March 1999. The original trustees were Mrs Brown, Mr Roberts and Clifton William Paul Brown (Mr Brown). Mr Brown died on 10 October 2019.

[3]        The medical evidence is that Mrs Brown no longer has capacity. The medical certificate provided is dated 17 June 2019 and refers to assessments made in March and April 2019. The certificate records Mrs Brown is not mentally capable and that she lacks capacity to make judgments about her daily living, or to foresee the consequences of the failure to make such decisions. Without identifying the condition affecting Mrs Brown, the medical certificate concludes that her mental capacity is due to a health condition that is likely to continue indefinitely.

[4]        Ideally, the medical certificate would be more current, or at least confirmed by a more recent  letter  from  Mrs  Brown’s  medical  practitioner.  However,  both  Mrs Brown’s children, Craig Brown and Nicola Brown, who hold joint power of attorney for Mrs Brown, confirm that her understanding and capacity have not improved. They confirm Mrs Brown is in full-time care.

[5]On that basis, I accept Mrs Brown lacks capacity.

[6]        The only asset in the Trust is a property at 17 Wilkin Street, Temuka (the property) which, I assume, was the residence of Mrs Brown and her late husband.  Mr Roberts explains that because Mrs Brown no longer lives at the property, he considers it appropriate that the property be sold.

Use of originating application procedure

[7]        Applications for vesting orders such as this are now routinely made by way of originating application. Vesting order applications have been characterised as administrative in nature and that is often the case in straightforward uncontested applications. In such applications, it is appropriate that a cost efficient and practical procedure be adopted.

[8]        Accordingly, leave is granted for the originating application procedure to be used.

Litigation guardian and service

[9]        As Mrs Brown is incapacitated, HCR 4.30 of the High Court Rules 2016 requires her to have a litigation guardian unless the…