Rolf

[2018] NZHC 158

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-90 [2018] NZHC 158

UNDER	Part 19 of the High Court Rules 2016
AND	.
IN THE MATTER	of the Trustee Act 1956
AND IN THE MATTER	of an application by EILEEN ELIZABETH ROLF and JACKSON RUSSELL TRUSTEE SERVICES LIMITED as Trustees of the EILEEN ROLF FAMILY TRUST
Applicants

On the papers	.
Appearances:	CE Harris for the Applicants
Judgment:	16 February 2018

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 16 February 2018 at 11.00 am

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Rolf and Jackson Russell Trustee Services Limited [2018] NZHC 158 [16 February 2018]

[1]      The trustees of the Eileen Rolf Family Trust are the registered proprietors of properties at:

(a)       875 New North Road, Mt Albert, comprised in Certificate of Title

NA3A/349;

(b)      134-136  Great  South  Road,  Papakura,  comprised  in  Certificate  of

Title NA32B/899; and

(c)       24     Queen    Street,     Riverhead,    comprised     in     Certificate    of

Title NZ25A/510.

[2]      The current registered proprietors of the properties are Eileen Elizabeth Rolf, Jackson Russell Trustee Services Limited and Colleen Joan Wardale (Colleen). Colleen has been determined to lack mental capacity.

[3]      The applicants bring this proceeding under s 52 of the Trustee Act 1956 which provides that the Court may make an order vesting land or an interest in land in any person in circumstances where a trustee lacks full mental capacity or where it appears to the Court to be expedient.

[4]      By  Deed  of  Removal  of  Trustee  dated  29 November 2017,  Colleen  was removed as a trustee of the Trust pursuant to the powers of appointment and removal of trustees that are conferred on the appointor under clause 6 of the Trust Deed. Eileen Rolf is the settlor and the appointor of the Trust.

[5]      The  applicants  seek  leave  to  bring  this  proceeding  as  an  Originating Application under Part 19 of the High Court Rules 2016, and seek to have this application determined on the papers.

[6]      In terms of the Trust Deed, the primary beneficiaries are Eileen; Eileen's spouse; Eileen's daughter, Michelle Suzanne Rolf (who is also described as "the Final Beneficiary"); Michelle's children; a group described as “the Remoter Relatives” and any charity.

[7]      I am satisfied on the affidavit evidence filed that:

(a)       Colleen no longer has the capacity to fulfil her duties as a trustee.

(b)There are no interested parties on whom service of the application is necessary or appropriate.

(c)      Because the proceeding does not involve any disputed questions of fact and there is no opposing party, it is not necessary in the interests of justice for there to be a particularised pleading or to follow the usual interlocutory steps involved in a civil proceeding.

(d)The  vesting  order  sought  under  s 52  of  the  Trustee  Act  should appropriately be made.

[8]      Accordingly, I order:

(a)       The proceeding may be commenced by Originating Application under

Part 19 of the High Court Rules 2016.

(b)      The properties at:

(i)       875 New North Road, Mt Albert, comprised in Certificate of

Title NA3A/349;

(ii)134-136 Great South Road, Papakura, comprised in Certificate of Title NA32B/899; and

(iii)     24  Queen  Street,  Riverhead,  comprised  in  Certificate  of

Title NZ25A/510.

shall be vested in the current trustees of the Eileen Rolf Family Trust, namely Eileen Elizabeth Rolf and Jackson Russell Trustee Services Limited.

(c)       The costs of the application and any order thereon shall be met by the assets of the Eileen Rolf Family Trust.

...................................................

Toogood J