Rodley (EJM Family Trust) - [2023] NZHC 1411

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2023-412-11

[2023] NZHC 1411

UNDER section 52 of the Trustee Act 1956

IN THE MATTER

of the EJM FAMILY TRUST

AND

IN THE MATTER

of an application by JESSICA RUTH RODLEY and WARWICK JAMES GRAHAM

Applicants

Hearing: On the papers

Counsel:

A M McCormick and Q D H de Hamel for Applicants

Judgment:

7 June 2023

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 June 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE RODLEY (EJM FAMILY TRUST) [2023] NZHC 1411 [7 June 2023]

[1]There is before me an application for:

(a)leave to commence a proceeding seeking a vesting order by way of originating application under pt 19 of the High Court Rules 2016; and

(b)an order vesting a property situated at 40 Main Street, Weston in the names of Jessica Rodley (Jessica) and Warwick Graham (Warwick) as the current trustees of the EJM Family Trust.

[2] Jessica and Warwick are the current trustees of the EJM Family Trust. The trust was formerly known as the Lawry Family Trust and was created by a deed of trust dated 25 November 2004.

[3] The settlors of the Trust were Peter Lawry (Peter) and Sarah Lawry (Sarah), and the original trustees were Sarah and Malley & Co Trustees Ltd. The primary beneficiaries of the trust were the settlors and their children.

[4] The trust assets include a property at 40 Main Street, Weston recorded in record of title OT91/263. The current registered owners are Sarah and Malley & Co Trustees Ltd. Although there have been several changes of trustees over the years, the changes were not all recorded on the title to the property. The failure to change the registration was an administrative error.

[5]The changes of trustees were as follows:

(a)by deed dated 31 January 2019, Sarah was removed as trustee and Mike Buchanan appointed as a trustee in her place;

(b)by deed dated May 2020, Malley & Co Trustees Ltd was removed as a trustee and Jessica appointed in its place; and

(c)by deed dated 29 July 2022, Mike Buchanan was removed as a trustee and replaced by Warwick.

[6]Peter was removed a beneficiary of the trust in 2007.

[7] Sarah was removed as a trustee because she lacked mental capacity, and she has recently passed away.

[8] Jessica and Warwick are seeking an order pursuant to s 52(2) or (3) of the Trustee Act 1956 to have the Main Street property vested in them as the current trustees, because that is required for administrative purposes and they recognise their responsibilities and duties as trustees and wish to ensure compliance with those duties.

[9] All of the children of Peter and Sarah are aware of this application and consent to it. There are no other known beneficiaries of the trust.

Leave to use the originating application process

[10] The proposed…

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 Rodley (EJM Family Trust)

Details

AGLC: Rodley (EJM Family Trust) [2023] NZHC 1411
Case: [2023] NZHC 1411
Decision Date: 7 June 2023

CaseChat Overview and Summary

The High Court of New Zealand considered an application by Jessica Ruth Rodley and Warwick James Graham, current trustees of the EJM Family Trust, to obtain leave to commence proceedings seeking a vesting order for a property at 40 Main Street, Weston. The application was made under section 52 of the Trustee Act 1956, and sought an order to vest the property in the names of Jessica and Warwick. The property was previously recorded in the names of Sarah and Malley & Co Trustees Ltd, but there had been several changes of trustees over the years that were not recorded on the title. This was an administrative error, and the current trustees wished to ensure the property was correctly vested to comply with their duties.

The legal issues before the Court were whether leave should be granted to commence the proceeding by way of an originating application and whether a vesting order should be made. The Court found that the use of the originating application process was appropriate in this case as it was a purely administrative matter and there was no opposition. The Court also considered that the vesting order was necessary to ensure the property was correctly vested in the names of the current trustees. The Court concluded that the applicants were validly appointed as trustees and the vesting order was appropriate to ensure compliance with their duties.

The Court granted the applicants leave to commence the proceeding by way of an originating application and dispensed with service of the application. The Court also granted the application for a vesting order and made an order that the property at 40 Main Street, Weston vest in the names of Jessica Ruth Rodley and Warwick James Graham as trustees for the time being of the EJM Family Trust. Leave was reserved to apply for further directions if necessary.

Orders