Sunde v Sunde - [2019] NZHC 325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-321

[2019] NZHC 325

UNDER section 52 of the Trustee Act 1956

BETWEEN

ROY MELVIN SUNDE, KEVIN PAUL SUNDE AND MARINA ANNE SUNDE as

trustees of the MM Sunde Family Trust Applicants

AND

LEO ZANE SUNDE AND VERA ZORA

MARY GIBSON as removed trustees of the MM Sunde Family Trust

Respondents

Hearing: On the papers

Counsel:

A J Sherlock and A Eager for the Applicants

Judgment:

4 March 2019

JUDGMENT OF GORDON J

This judgment was delivered by me on 4 March 2019 at 11.30 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Hesketh Henry, Auckland

SUNDE v SUNDE [2019] NZHC 325 [4 March 2019]

Introduction

[1] The applicants, Roy Sunde (Roy), Kevin Sunde (Kevin) and Marina Sunde (Marina), as trustees of the MM Sunde Family Trust (the trust), seek an order under s 52(1)(b)(i) of the Trustee Act 1956 (the Act) vesting the realty assets of the trust in them as continuing trustees.

[2] They also seek associated orders permitting commencement of this proceeding by way of originating application and dispensing with service of this proceeding.

Background

[3] The trust was established by Deed of Trust (dated 27 April 1999). The original trustees were four siblings being the respondents, Leo Sunde (Leo) and Vera Gibson (Vera), together with Roy Milan Sunde (Roy Snr) and Zita Sunde (Zita).

[4] The only one of the siblings to have children was Roy Snr who was the father of Roy, Kevin and Marina.

[5] Both Roy Snr and Zita are now deceased. Roy Snr died on 27 August 2005. After his death, Kevin and Roy were appointed by Deed of Appointment of New Trustees (dated 22 February 2006) to replace Roy Snr to act with the then continuing trustees.

[6] Zita died on 18 December 2013. Marina was appointed to replace Zita as trustee by Deed of Appointment of New Trustee (dated 31 March 2014). Accordingly, as at that date, the trustees were Leo, Vera, Kevin, Roy and Marina.

[7] All of the trustees held the power of appointment under the Trust Deed. By Deed of Removal (dated 12 November 2018), Leo and Vera were removed as trustees. They were both removed on the basis that they each suffer from dementia and lack the ability to understand and make decisions.

[8] Leo and Vera, as previous trustees of the trust, are registered on the titles of properties owned by the trust.

[9] Roy, Kevin and Marina, as continuing trustees, seek an order vesting the trust’s realty in them pursuant to s 52(1)(b)(i) of the Act on the basis that Leo and Vera do not have the capacity to authorise the transfer of the trust’s realty to the continuing trustees.

[10] Before turning to the matter of the vesting order there are prior matters I need to address.

Should permission be granted to commence the proceedings by way of originating…

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 Sunde v Sunde

Details

AGLC: Sunde v Sunde [2019] NZHC 325
Case: [2019] NZHC 325
Decision Date: 4 March 2019

CaseChat Overview and Summary

The High Court of New Zealand in Auckland considered a case involving the MM Sunde Family Trust and its trustees. The trustees of the trust, Roy Melvin Sunde, Kevin Paul Sunde, and Marina Anne Sunde, sought an order under section 52(1)(b)(i) of the Trustee Act 1956 to vest the trust's realty assets in them. The application was made against Leo Zane Sunde and Vera Zora Mary Gibson, who were removed as trustees due to their incapacity caused by dementia. The trustees sought to have the realty assets vested in them, as they believed Leo and Vera lacked the capacity to authorise the transfer of the trust's realty. The court was required to decide whether the proceeding could be commenced by way of an originating application, whether service of the proceedings on the removed trustees and beneficiaries should be dispensed with, and whether the trust's property should be vested in the continuing trustees.

The court granted permission for the proceeding to be commenced by way of an originating application, as the nature of the case justified this approach and there was no opposing party with contrary interests. The court also decided that service of the proceedings on the removed trustees and beneficiaries should be dispensed with, as both the removed trustees suffered from dementia and lacked the capacity to understand or participate in the proceedings meaningfully. The court held that the trust's property should be vested in the continuing trustees, as the equitable interest in the realty had already passed to them, and neither Leo nor Vera had the capacity to authorise the transfer of the trust's property. Consequently, the court made an order vesting the trust's realty in the continuing trustees, Roy Melvin Sunde, Kevin Paul Sunde, and Marina Anne Sunde.

Orders