Smith v Smith

[2022] NZHC 2349

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1437

[2022] NZHC 2349

IN THE MATTER

of the Trustee Act 1956

AND

IN THE MATTER

of the Smith Family Trust

BETWEEN

STEPHEN EDWIN SMITH and SEAN STEPHEN SMITH

Applicants

AND

LISA ANN SMITH

Respondent

Hearing:	On the papers
Counsel:	C C Endean for applicants
Date of judgment:	14 September 2022

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 14 September 2022 at 10.00am.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Solicitors:

Dawsons Lawyers, Auckland

SMITH v SMITH [2022] NZHC 2349 [14 September 2022]

[1]                  This proceeding seeks to vest property in Auckland’s East Tāmaki — registered in the names of Stephen, Lisa and Sean Smith, as then-trustees of the Smith Family Trust — in the names of Stephen and Sean alone, on removal of Lisa as trustee on 26 February 2014. Lisa has not responded to requests to facilitate the property’s transfer.

[2]My minute of 24 August 2022 enquired:

As duty judge, I have the trustees’ 16 August 2022 without notice originating application for vesting orders sought under s 52 of the repealed Trustee Act 1956. I would be grateful for counsel’s consideration and response as to the foundation for the trustees’ intended reliance on that repealed provision (now substituted by s 116 of the Trusts Act 2019, subject to the Act’s transitional provisions).

[3]                  Section 116 of the 2019 Act enables divestment and vesting of trust property on change of trustees by statutory declaration rather than Court order. For the continuing trustees, Claire Endean explains, as Lisa was removed before the 2019 Act’s commencement date, the transitional provisions require such divestment and vesting to “be  completed  as if this Act had  not commenced”.1  I am  grateful for  Ms Endean’s clarification.

[4]                  Particularly given s 116, I am satisfied the application can properly be dealt with without notice as routine, or in any event requiring the trustees to proceed on notice would cause them undue delay or prejudice or the interests of justice require the application to be determined without serving notice of it.2

[5]                  I also am satisfied the originating application procedure may appropriately be deployed here to secure the just, speedy and inexpensive determination of this proceeding.3 Lisa, having no interest in the property other than as beneficiary, can have no objection to its vesting in the names of the trustees alone.

[6]                  Last, I am satisfied the order is necessary to ensure the trust property properly is vested in the names of the trustees alone.

1      Trusts Act 2019, Sch 1, cl 11(2). See Lewis v Lewis [2021] NZHC 585.

2      High Court Rules 2016, r 7.46.

3      Part 32.

Result

[7]The trustees’ application for a vesting order is granted.

—Jagose J