Schaef v Schaef - [2019] NZHC 2369

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-542

[2019] NZHC 2369

UNDER section 52 of the Trustees Act 1956

IN THE MATTER

of an application vesting land in the Applicants

BETWEEN

DEAN RICHARD BRIAN SCHAEF, PAUL HARRY WESTBURY AND DENIS FRANK WOOD

Applicants

AND

JACK BRIAN SCHAEF

Respondent

On the papers

Counsel:

R J H Scott for Applicants

Judgment:

19 September 2019

JUDGMENT OF ELLIS J

[1] The trustees of the Schaef Family Trust (the Trust) own a property at 27 Grass Street, Wellington. Title is in the names of the three original trustees: Jack Brian Schaef (Jack), Paul Harry Westbury and Denis Frank Wood. The final beneficiaries are Jack’s two children, Dean Richard Brian Schaef (Dean) and Tonia Leigh Schaef (Tonia).

[2] There is medical evidence before the Court to the effect that Jack is suffering from dementia and, since 2017, has no longer had capacity to manage his affairs. As

SCHAEF v SCHAEF [2019] NZHC 2369 [19 September 2019]

a consequence, Jack was removed as Trustee and Messrs Westbury and Wood took steps in accordance with the Trust Deed to appoint Dean in his stead.1

[3] The three present trustees have now filed an originating application seeking an order vesting the Grass Street property in them. Ancillary to that they seek:

(a)leave to commence by way of originating application without notice to any other person;

(b)an order that a litigation guardian for Jack need not be appointed.

[4]An affidavit from Tonia supporting the application has also been filed.

[5] It is appropriate for these proceedings to be brought by way of originating application. There is ample authority for that course.2 Leave is granted accordingly.

[6] I am also satisfied that it is appropriate that the application be brought and determined without notice.3 As already recorded, the only final beneficiaries of the Trust are Dean (who is one of the applicants) and Tonia (who consents). I further accept that, in terms of r 4.30 of the High Court Rules, there is nothing to be gained by appointing a litigation guardian because Jack would be unlikely to understand either the nature of any advice received or the nature of the proceedings.

[7] While there is no evidence as to the notification or consent of the discretionary (or “eligible”) beneficiaries,4 the substantive order sought is merely an administrative step enabling the Trust to continue operating and there can be no prejudice to them if the substantive order sought is made.

1 Clause 4.12.3 of the Trust Deed provides that the office of a Trustee shall be vacated if that Trustee is found to be of unsound mind. And while Jack is the named “Appointer”, cl 5.2 of the Deed also provides that where the Appointor is unable to act then the Power of Appointment is vested in the Continuing Trustees pursuant to s 43 of the Trustee Act 1956.
2 By way of recent example only see Re Hamertons Trustee…

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 Schaef v Schaef

Details

AGLC: Schaef v Schaef [2019] NZHC 2369
Case: [2019] NZHC 2369
Decision Date: 19 September 2019

CaseChat Overview and Summary

The case of Schaef v Schaef involved an application to vest land in the applicants, Dean Richard Brian Schaef, Paul Harry Westbury, and Denis Frank Wood, who were the trustees of the Schaef Family Trust. The property in question was located at 27 Grass Street, Wellington, and the final beneficiaries were Jack Brian Schaef's two children, Dean and Tonia Leigh Schaef. The application sought an order vesting the Grass Street property in the applicants, leave to commence the application without notice to any other person, and an order that a litigation guardian for Jack need not be appointed. The court was required to decide whether it was appropriate for the application to be brought by way of originating application, whether leave should be granted for the application to be brought without notice, and whether a litigation guardian for Jack should be appointed.

The court found that it was appropriate for the application to be brought by way of originating application, as there was ample authority for that course. The court also found that it was appropriate for the application to be brought and determined without notice, as the only final beneficiaries of the Trust were Dean and Tonia, who supported the application, and there was nothing to be gained by appointing a litigation guardian because Jack would be unlikely to understand either the nature of any advice received or the nature of the proceedings. The court further found that the substantive order sought was merely an administrative step enabling the Trust to continue operating, and there could be no prejudice to the discretionary beneficiaries if the substantive order sought was made.

In conclusion, the court made orders granting leave to bring the present application by way of originating application and without notice, and under section 52(1)(b)(i) of the Trustee Act 1956, that the property at 27 Grass Street, Wellington, currently registered in the names of Jack Brian Schaef, Paul Harry Westbury, and Denis Frank Wood as trustees of Schaef Family Trust now vests in Dean Richard Brian Schaef, Paul Harry Westbury, and Denis Frank Wood as trustees of Schaef Family Trust.

Orders