Seal v Seal

[2016] NZHC 1763

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-361 [2016] NZHC 1763

UNDER

Part 19 of the High Court Rules and s 52

of the Trustee Act 1956

IN THE MATTER OF

an application for vesting of land in remaining trustees

BETWEEN

PHILLIP ALAN SEAL AND PAUL IAN MAYES Applicants

AND

FAY ANNETTE SEAL Respondent

AND

SHERRIN FAY SOLOMON Party directed to be served

Hearing:

1 August 2016

(On the papers)

Counsel:

M J Sandom for Applicants

Judgment:

1 August 2016

JUDGMENT OF MANDER J

[1]      The Taynuilt Trust (the Trust) was settled by Mr Robert Seal pursuant to a deed of 21 June 2005.  The trustees were Robert Seal, his wife Fay Seal, and the continuing trustees Phillip Seal and Paul Mayes.

[2]      Mrs Seal suffers from dementia as assessed by Dr Bevan Rogers on  18

August 2015.  Because of her mental incapacity, Mrs Seal, the formal respondent in this matter was removed as a trustee in May 2016 pursuant to a power exercised by the settlor under the trust deed.  At that time, on his own volition, Mr Robert Seal

retired as a trustee.

SEAL AND ANOR v SEAL [2016] NZHC 1763 [1 August 2016]

[3]      The  Trust  owns  a  property  situated  at  13A  Murray  Street,  Rangiora. Mr Robert Seal has signed an authority and instruction to remove himself from the title to the property and leave the continuing current trustees as the registered proprietors.  Mrs Seal, however, is unable to sign an authority and instruction form due to her mental incapacity.  The District Land Registrar will not accept the vesting provisions in a trust deed as sufficient to enable the transfer of title to the continuing trustees. A vesting order is required under s 52 of the Trustee Act 1956.

[4]      The continuing trustees have applied for an order vesting the property in their names.  On 22 June, I made orders granting leave to bring the application by way of an originating application and dispensing with service of the application on the respondent, Mrs Seal. At that time, I directed service of the application and affidavit in support to be effected on Ms Sherrin Fay Solomon who is a discretionary beneficiary under the trust deed.

[5]      Ms Solomon has been formally advised in writing of the circumstances and background to the making of the application.  She has provided written consent to the making of an order vesting the Rangiora property in the names of the remaining trustees, Messrs Phillip Seal and Paul Mayes.

[6]      Counsel in their memorandum of 12 May 2016 advised that while Mr Robert Seal is no longer a trustee by virtue of his retirement, the vesting order needs to be registered before the transfer that removes Robert from the title.  This is because the authority and instruction form authorising the registration needs to be signed by both the transferors and the transferees.

[7]      Mrs Seal is unable to sign this form as a transferee.  However, once she is no longer registered on the title then the authority and instruction form that has been signed by the current trustees and the retired trustee, Mr Robert Seal, can be processed.

[8]      It is for this reason the application is for a vesting order in the names of the current trustees as well as the retired trustee, Mr Robert Seal.  Once the title is vested in the names of those three persons, then the transfer can be processed that removes

Robert from the title.  This will have the effect of leaving the registered proprietors as the current trustees, namely Phillip Seal and Paul Mayes.

[9]      I note that the written consent provided by Ms Solomon as a discretionary beneficiary makes reference only to the vesting of the title in the names of Phillip Seal and Paul Mayes as trustees.  It does not refer to the vesting order including the retired trustee, Robert Seal.  Ms Solomon is the daughter of Robert and Fay Seal, and the sister of one of the current trustees, Phillip Seal.  In the circumstances, I do not consider anything turns on the absence of Robert Seal from the written consent provided by Ms Solomon.

[10]     Having read the application, the affidavit of Phillip Seal and the related materials filed, I am satisfied that a vesting order should be made to facilitate the property being vested in the name of the current trustees.  Accordingly, I make the following orders:

(a)       An order under s 52 of the Trustee Act 1956 vesting the property at

13A Murray Street, Rangiora, (identifier CB45B/1150) in the names of Phillip Alan Seal, Paul Ian Mayes and Robert Ian Seal.

(b)      That no issue as to costs arises on the proceeding.

Solicitors:

Williams McKenzie, Rangiora

Copy to:

Sherrin Solomon