Tokahere v Tokahere Trustee Company Limited

[2018] NZHC 1325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1084

[2018] NZHC 1325

UNDER

the Trustee Act 1956

IN THE MATTER

of the Apia Tokahere Family Trust

BETWEEN

TEPORA TOKAHERE

First Applicant

AND

TOKAHERE TRUSTEE COMPANY LTD

Second Applicant

Hearing:	(On the papers)
Counsel:	B J Fuller for Applicants
Judgment:	6 June 2018

JUDGMENT OF BREWER J

Solicitors:

Sutcliffe Matson Law (Auckland) for Applicants

TOKAHERE & TOKAHERE TRUSTEE COMPANY LTD [2018] NZHC 1325 [6 June 2018]

Introduction

[1]                  Ms Tepora Tokahere and Tokahere Trustee Company Ltd have filed an originating application without notice for a vesting order under s 52 of the Trustee Act 1956.

[2]                  Documents attached to the affidavit of Ms Tokahere in support of the application establish:

(a)The Apia Tokahere Family Trust (the Trust) was established by Deed of Settlement on 10 September 2013.

(b)The trustees are Mr Apia Tokahere (who has the power of appointment) and Ms Tokahere.

(c)Mr Tokahere and Ms Tokahere, as trustees, own a one-half share in real property with the identifier NA22A/119, North Auckland Land Registration District (the Trust property). I note Ms Tokahere and her husband, Mr Ikimotu, each own a one-quarter share.

(d)Mr Tokahere has Alzheimer’s Disease dementia and is incapable of acting as a trustee.

(e)By Deed of Appointment of New Trustee made on 11  May  2018,  Ms Tokahere invoked s 43(1)(f) of the Trustee Act 1956 to remove  Mr Tokahere as a trustee of the Trust and to appoint in his place Tokahere Trustee Company Ltd.

[3]                  The Trust property is subject to a mortgage to ANZ Bank New Zealand Ltd, and the mortgage is in arrears. Demand has been made by ANZ Bank.

[4]                  In her affidavit, Ms Tokahere advises the current asset of the Trust is the half- share in the Trust property. The loan from ANZ Bank was taken out by herself, her husband and Mr Tokahere. The Trust guaranteed the loan and secured it by the mortgage. To prevent a mortgagee sale, Ms Tokahere and her husband have arranged

to refinance the loan, but in order to do so a vesting order must be made removing Mr Tokahere as a registered proprietor.

[5]                  Ms Tokahere identifies five siblings who are discretionary beneficiaries under the Trust. She deposes that none is currently in a position to take office as a trustee for the following reasons:1

a)   My sister Elizabeth is homeless and cannot be located;

b)   My brother Tokahere has cancer;

c)   My brother Tangaroa has been trespassed from the Trust property and currently does not have contact with me or my father;

d)   My sister Mamie resides in Brisbane, Australia; and

e)   My brother Sonny resides in Rarotonga.

[6]                  I note that Ms Tokahere is the sole director and shareholder of Tokahere Trustee Company Ltd.

Discussion

[7]                  All beneficiaries under the Deed of Settlement of the Trust are discretionary beneficiaries. The usual wide powers are granted which include making advances to discretionary beneficiaries, mortgaging a Trust property, and giving guarantees.

[8]                  I have no doubt that Mr Tokahere is incapable of acting as a trustee and that a vesting order should be made. I have no reason to suppose that Ms Tokahere does not understand her duties as a trustee and will not act in accordance with them.

[9]                  I accept a vesting order is required to enable the mortgage to ANZ Bank to be refinanced as a matter of urgency.

[10]              Although the Court would naturally prefer there to be a second, independent, trustee, I do not consider this to be a case where the delay and expense required to serve the other discretionary beneficiaries is warranted.

1      Affidavit of Tepora Tokahere in support of application for a vesting order under s 52 of the Trustee Act 1956, affirmed 5 June 2018, at para 7.

[11]              I am prepared to make the order sought by the applicants. However, I stipulate that a copy of this Judgment be sent by post by the applicants to Ms Tokahere’s siblings to their last known addresses. This is for the purpose of ensuring that the discretionary beneficiaries are aware of what has happened.

Decision

[12]              The originating application without notice for a vesting order under s 52 of the Trustee Act 1956 is granted. The order may be sealed in the form provided.

[13]I make no order for costs.

Brewer J