Telke v Telke

[2019] NZHC 824

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-190

[2019] NZHC 824

UNDER

Part 18 of the High Court Rules

IN THE MATTER

of sections 51 and 52 of the Trustee Act 1956

BETWEEN

IAN KENNETH TELKE, MAITLAND CRAIG TELKE and MELONIE JANE TELKE

Plaintiffs

AND

ANN CAROLINE TELKE

Defendant

In chambers:	15 April 2019
Counsel:	J Evans for plaintiffs
Judgment:	15 April 2019

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]        The plaintiffs seek an order dispensing with service of the originating documentation in this proceeding.

[2]        Essentially, the reason advanced for dispensing with service is that the defendant, Mrs Ann Telke, has advancing dementia and there is evidence before the Court from her medical advisers that she would not understand the nature of the proceeding.

[3]        Mrs Telke settled a trust on 1 July 1995. Her husband, Mr Ian Telke, and she were the trustees. The beneficiaries were and are family members. The trust owns the former family home in Wellington. After Mrs Telke was diagnosed with dementia,

TELKE v TELKE [2019] NZHC 824 [15 April 2019]

and it became clear that she was unable adequately to manage her own affairs, an enduring power of attorney executed by her in favour of Mr Telke was activated. One of Mr and Mrs Telke’s children, Melonie Telke, lives in Wanaka. Mrs Telke is now hospitalised there. Mr Telke is proposing to move to Wanaka to be with Mrs Telke and their daughter. Accordingly, the family home has to be sold.

[4]        On Mr Telke’s instructions, the trust solicitors prepared a deed of discharge of trustee and appointment of new trustees. It was executed by Mr Telke and the two new trustees, Mr  and Mrs Telke’s  children, Maitland Telke  and Melonie Telke  on  1 February 2019. This document incorrectly identified the settlor — Mrs Telke — as having the power of appointment. It proceeds on the basis that Mr Telke is exercising his powers as a trustee pursuant to s 43(1)(e) and (f) of the Trustee Act 1956 to discharge Mrs Telke as a trustee (on account of her incapacity) and appoint the children as trustees with him.

[5]In fact, the trust deed provides that Mr Telke has the power of appointment.

[6]        Mr Evans, whilst acknowledging the apparent error, submits that as Mr Telke had the power to discharge and appoint trustees in any event, it is irrelevant that he elected to do so by another route. I agree.

[7]        Since the restructuring of the trusteeship, the new trustees have agreed to sell the family home and the sale is due to settle on 30 April 2019.

[8]        The substantive remedy that the trustees seek by summary judgment is an order vesting title of the property in them as the owners so that there is no issue with the transfer of the property to the purchasers.

[9]        I am satisfied that it is appropriate to dispense with service of the originating documents and make the unopposed order sought by the trustees. Accordingly, I make orders:

(a)pursuant to r 18.7(5) dispensing with service of the originating documentation on the defendant;

(b)pursuant to ss 51 and 52 of the Trustee Act 1956 granting the plaintiffs, by way of summary judgment, a vesting order in the terms sought in paragraph 1(a) of their application dated 5 April 2019.

Associate Judge Johnston

Solicitors:
Hayman Lawyers, Wellington for plaintiffs