Taylor v Plant

[2019] NZHC 2859

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-278

[2019] NZHC 2859

UNDER

Part 19 of the High Court Rules and section 52 of the Trustee Act 1956

IN THE MATTER

of an application pursuant to section 52 for a vesting order to be made

BETWEEN

RONALD KAURI TAYLOR as attorney for Executor NOELINE MIRIAM ELIZABETH

PLANT of the Estate of RAYMOND PLANT

Applicants

AND

NOELINE MIRIAM ELIZABETH PLANT

Respondent

On the papers	At Auckland
Judgment:	7 November 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 7 November 2019 at 11 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:      N Lee, Hamilton

Application for Vesting Order – Taylor v Plant [2019] NZHC 2859 [7 November 2019]

[1]The applicant, Ronald Taylor, seeks the following orders:

(a)granting permission to commence proceedings by way of originating application; and

(b)dispensing with service of the application; and

(c)vesting the property situated at 34 Crosby Road, Chartwell, Hamilton being the property contained in identifier SA49B/276 (“the property”) in the name of Mr Taylor.

(d)costs be met by the Estate of Raymond Plant.

[2]                 The application is necessary because the registered owner of the property is the respondent, Noeline Plant, Mr Taylor’s mother. Mrs Plant holds a half share of the property in her personal capacity, and the remaining half share as executor of the estate of Raymond Plant (“the Estate”), but there is clear evidence she lacks the mental capacity to look after herself or to deal with the land.

[3]                 In respect of Mrs Plant’s personal affairs Mr Taylor holds an enduring power of attorney dated 7 April 2010, and in relation to the Estate was on 19 June 2019 appointed by the High Court to be the administrator of the Estate as the lawfully constituted attorney of Mrs Plant.

[4]                 In his capacities as attorney of Mrs Plant and as the administrator of the Estate, Mr Taylor has signed an agreement for sale and purchase over the property, but due to Mrs Plant’s mental condition she is unable to sign an authority and instruction form to enable settlement to be completed.

[5]                 In the circumstances it is clearly appropriate for orders to be made that will enable the property to be sold. While however the end point is as sought in the orders, it is not appropriate to transfer the property to Mr Taylor only in his capacity as the administrator of the Estate as sought in the application. Instead, given Mrs Plant’s different interests in the land, half of the property is to be transferred into Mr Taylor’s name in his capacity as Mrs Plant’s attorney and half in his capacity as the

administrator of the Estate, meaning that while he is then the registered proprietor of the property and able to complete the settlement, he will have to account for the settlement proceeds separately to both Mrs Plant and the Estate, and the costs of the application should also be equally borne by both Mrs Plant and the Estate.

[6]As a result I make the following orders:

(a)leave is given to commence these proceedings by way of originating application;

(b)dispensing with service of the application;

(c)that the undivided half shares held by Noeline Miriam Elizabeth Plant in the property situated at 34 Crosby Road, Chartwell, Hamilton being the property contained in identifier SA49B/276 are to be vested in Ronald Kauri Taylor; and

(d)the costs of this application are to be shared equally by Noeline Miriam Elizabeth Plant and the Estate of Raymond Plant.

Powell J