Robertson v Robertson - [2020] NZHC 2659

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-86

[2020] NZHC 2659

UNDER the Trustee Act 1956

IN THE MATTER

of an application for a vesting order

BETWEEN

DOUGLAS JAMES ROBERTSON, KELVIN ROSS ROBERTSON and DEAN AND KIRK TRUST COMPANY LIMITED

Applicants

AND

ANNIE MARIE ROBERTSON

Respondent

Hearing: (Determined on the papers)

Counsel:

B K Coleman for Applicants

Judgment:

9 October 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 9 October 2020 at 2.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 9 October 2020

ROBERTSON v ROBERTSON [2020] NZHC 2659 [9 October 2020]

[1] The J A & A M Robertson Family Trust (the Trust) was settled on 18 November 1994. James Alexander Robertson and the respondent, Annie Marie Robertson (Annie) were the settlors and two of the original trustees.

[2] Annie unfortunately has lost capacity and is unable to make decisions in respect of the Trust property. The applicants are, along with Annie, the present trustees of the Trust. While I am not told, I have assumed that the other settlor, James Robertson, has died. I note he was described in the 1994 Deed as “retired”. In any event, he is no longer a trustee.

[3] The applicants have sworn a joint affidavit recording that they wish to sell the property owned by the Trust in Oamaru so income from the sale proceeds can be applied towards Annie’s care. With Annie no longer having capacity and with, again as I assume, Annie’s co-settlor no longer being alive, the applicants are left having to seek the assistance of the Court in respect of regularising the affairs of the Trust.

[4] The application is on a without notice basis and below I identify the procedural steps to be addressed.

[5] The application proceeds on the basis that the Trust Deed requires all decisions and resolution of the trustees to be unanimous. However, I note cl 22 of the Trust Deed, produced to the Court, provides:

22 Trustees’ majority decisions

If any dispute or different shall arise between the Trustees respecting any matter relating to the Trust Fund the decision of the majority of the Trustees, if there be more than two, shall be binding on the other Trustees provided that any Trustee may require the Trustees to record their disagreement and advise the person for the time being entitled to appoint new or further Trustees of the disagreement.

[6] The term “Trust Fund” as used in cl 22 of the Trust Deed means the property held in the Trust.

[7] The applicants seek an order that the Trust property in Oamaru be vested in them alone. They recognise the need for the property to be in their name in order for

them to sell the property. A vesting order is sought pursuant to s 52 of the Trustee Act 1956 (the Act).

[8] While the applicants’ case is predicated on Annie no longer…

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 Robertson v Robertson

Details

AGLC: Robertson v Robertson [2020] NZHC 2659
Case: [2020] NZHC 2659
Decision Date: 9 October 2020

CaseChat Overview and Summary

The High Court of New Zealand recently considered an application for a vesting order in the case of Robertson v Robertson. The applicants, Douglas James Robertson, Kelvin Ross Robertson, and Dean and Kirk Trust Company Limited, sought the order to facilitate the sale of trust property for the benefit of Annie Marie Robertson, who had lost capacity and could no longer act as a trustee. The Trust in question was established in 1994 and was intended to hold property for the benefit of the settlors and their successors. Given Annie's incapacity, the applicants needed court intervention to regularise the trust's affairs and enable the sale of property.

The court had to decide whether to dispense with service of the application on Annie and to consider the inherent jurisdiction to remove a trustee who has lost capacity. The applicants argued that the Trust Deed required unanimous decisions, but clause 22 of the Deed allowed for majority decisions in the event of a dispute. However, with Annie incapacitated, the applicants contended it was unnecessary and impractical for her to remain as a trustee.

The court granted the application on a without notice basis, finding it appropriate for the application to be made as an originating application. The court also dispensed with the need to serve the application on Annie, given her incapacity and the administrative nature of the application. Regarding the inherent jurisdiction, the court held that it could remove a trustee who had lost capacity to protect the interests of the beneficiaries. The court concluded that it was in the best interests of the Trust to remove Annie as a trustee and ordered the vesting of the Trust property in the names of the remaining trustees.

In summary, the court allowed the application for a vesting order, removed Annie as a trustee, and vested the Trust property in the remaining trustees. This decision facilitated the sale of the property for the benefit of Annie, who had lost capacity and could no longer act as a trustee.

Orders