Stumbles Trustees Limited

[2022] NZHC 672

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2022-412-000019

[2022] NZHC 672

UNDER	the Trustee Act 1956
IN THE MATTER	of an application for a Vesting Order in respect to land
BY	Stumbles Trustees Limited as a trustee of the Denis & Cynthia Stumbles Family Trust

Hearing:	On the papers
Counsel:	B L Clinton for Applicant
Judgment:	4 April 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 4 April 2022 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Re Stumbles Trustees Ltd [2022] NZHC 672 [4 April 2022]

[1]There are applications before the Court for:

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

(b)vesting a property at 95 Patearoa Waipiata Road, Patearoa, Ranfurly (Identifier OT10A/931, Otago Land Registration District), in the names of Stumbles Trustees Limited and HGW Trustee’s Limited as the current trustees of the Denis & Cynthia Stumbles Family Trust.

[2]        The application was made in the name of Paul Antony Stumbles, as director of Stumbles Trustees Ltd, when it should have been made by the company and HGW Trustee’s Ltd. I have treated the application as having been made by them.

Background

[3]        Denis Michael Stumbles and Cynthia Dorothy Mary Stumbles were a married couple. They, along with HGW Trustee’s Ltd, were the original trustees of the Denis & Cynthia Stumbles Family Trust (the Trust) established by Deed of Trust dated 3 April 2000. Denis and Cynthia were discretionary beneficiaries of the Trust. The capital beneficiaries were Denis, Cynthia, their children, grandchildren and remoter issue, as well as the spouses for the time being of such beneficiaries. Denis and Cynthia had powers to remove and appoint new or additional trustees to the Trust.

[4]        By deed dated 12 April 2018, Denis and Cynthia exercised their power to appoint Stumbles Trustees Limited as a new trustee of the Trust and they both retired as trustees.

[5]Denis died on 2 March 2021.

[6]        Cynthia has developed dementia and is unable to make decisions in respect to her own affairs or in relation to property.

[7]        HGW Trustee’s Limited and Stumbles Trustees Limited are now the trustees of the Trust. However, there is a problem in that the property situated at 95 Patearoa Waipiata Road, Patearoa, Ranfurly, which is an asset of the Trust, remains registered in the names of Denis, Cynthia and HGW Trustee’s Limited.

[8]        As Denis and Cynthia retired as trustees prior to the commencement of the Trusts Act 2019, it is necessary for the current trustees to apply to the Court for a vesting order under s 52 of the Trustee Act 1956, so that the title to the property records the correct position, and they can administer the Trust’s asset.1

Leave to use the originating application process

[9]        This is not a proceeding that can be brought by way of an originating application as of right under rr 19.2 or 19.3 of the High Court Rules 2016. Rule 19.5 permits the Court to authorise use of the originating application procedure where to do so is in the interests of justice. In this context, the interests of justice means securing the just, speedy and inexpensive determination of proceedings.2

[10]      I am satisfied this is a case where it is appropriate to authorise the commencement of the proceeding by way of originating application. There is no need for particularised pleadings or interlocutory applications, such as discovery. The application appears straightforward and suitable for determination on a summary basis.

[11]      What is sought is an order of a purely administrative nature. While Denis and Cynthia retired as trustees some years ago, Denis has now died and Cynthia lacks mental capacity, and so the trustees cannot call upon them to sign the documents necessary to transfer the property into the names of the current trustees.

[12]      Given the state of Cynthia’s health, I do not consider it would be appropriate, or would serve any useful purpose, to have the application served upon her. She is not

1      This is a similar situation as arose Lewis v Lewis [2021] NZHC 585 and Mason v Stocker [2022] NZHC 564.

2      Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26].

a trustee and the application does not affect her interest as a beneficiary.    In the circumstances it is appropriate, in my view, that I dispense with service.

Should there be an order vesting the property in the current trustees?

[13]      The applicant needs to resort to the Court to obtain a vesting order under s 52 of the Trustee Act 1956 rather than to utilise the processes now available under the Trusts Act 2019 for the same reasons set out in Lewis v Lewis3 and Mason v Stocker.4 The applicant submits that making a vesting order is appropriate and necessary to ensure the Trust property is vested in the name of the current trustees. Given the circumstances, I have no hesitation in making the order. I am satisfied Denis and Cynthia were validly removed as trustees, and that the current trustees are HGW Trustee’s Limited and Stumbles Trustees Limited. The order sought is necessary to ensure the Trust property is correctly vested in the names of the trustees for the time being, so that the affairs of the Trust can be administered. The making of such an order also benefits Cynthia given her entitlement under the Trust as a beneficiary.

Result

[14]      The applicant has leave to commence this proceeding by way of originating application and I dispense with service.

[15]      The application for a vesting order is granted. There shall be an order that the property at 95 Patearoa Waipiata Road, Patearoa, Ranfurly (Identifier OT10/931, Otago Land Registration District) vest in the names of HGW Trustee’s Limited and Stumbles Trustees Limited, being the trustees for the time being of the Denis & Cynthia Stumbles Family Trust.

[16]There shall be no order for costs.

O G Paulsen Associate Judge

3      Lewis v Lewis, above n 1.

4      Mason v Stocker above n 1.

Solicitors:

O’Malley & Co Ltd, Lawyers, Balclutha.