Van Boxel v Van Boxel

[2018] NZHC 706

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-520

[2018] NZHC 706

IN THE MATTER

of the Trustee Act 1956

BETWEEN

KAREL ALOYSIUS VAN BOXEL and

NIKOS JASON as trustees of THE SOPHIE-MICHAEL TRUST

Applicants

AND

PATRICIA ANNE VAN BOXEL

Respondent

Hearing:	16 April 2018
Appearances:	I Wright for the Applicants
Judgment:	16 April 2018

ORAL JUDGMENT OF MUIR J

Counsel/Solicitors:

I Wright, Cockcroft d’Young Moorhouse Limited

VAN BOXEL v VAN BOXEL [2018] NZHC 706 [16 April 2018]

[1]    The applicants, Mr Karel van Boxel and Mr Nikos Jason are two of three trustees of The Sophie-Michael Trust. The third trustee is Mr van Boxel’s wife, Patricia Anne van Boxel. Mr Jason is an independent trustee.

[2]    Ms van Boxel suffers from dementia. I have reviewed both historic and recent medical certificates to that effect. She is currently institutionalised at an annual cost of some 10’s of thousands of dollars. Ms van Boxel, together with the children of  Mr and Mrs van Boxel are among the discretionary beneficiaries of The Sophie- Michael Trust.

[3]    The Trust includes a provision (cl 8.1(b) by which a remaining settlor, here Mr van Boxel, has the capacity to remove an incapacitated trustee. On 23 March 2018 Mr van Boxel exercised that power to remove his wife.

[4]    The application arises in what are familiar circumstances to this Court. The Trust owns a number of properties of which all three trustees are registered proprietors. Although Mr van Boxel holds enduring powers of attorney from his wife it is a matter of record that the District Land Registrar will not act under such powers so as to transfer Ms van Boxel’s interest to those trustees with capacity.

[5]    It is for that reason that the applicants seek the assistance of the Court under  s 52(1)(b)(i) of the Trustee Act 1956. They do so by way of an originating application.

[6]    I grant leave under paragraph 19.5 of the High Court Rules 2016 to commence the proceedings by way of an originating application.

[7]    I also order, pursuant to r 4.30 of the High Court Rules that representation of Ms van Boxel be dispensed with. There is well established authority to this effect, including the decisions in MacPherson v MacPherson1 and Cade v Cade.2 Like the Judges in both of those cases, I am satisfied that it is not necessary to appoint a litigation guardian to represent Ms van Boxel’s interests. As Gendall J noted in the MacPherson decision, if someone was appointed to represent the defendant she would

1      MacPherson v MacPherson [2016] NZHC 332.

2      Cade v Cade [2016] NZHC 1624.

be unlikely to understand either the nature of any advice given by them or the purposes of the proceedings.3

[8]    My decision in this respect is further fortified by the fact that there is in this case an independent trustee, Mr Jason.

[9]    I also consider it appropriate to dispense with service on both Ms van Boxel and the other discretionary beneficiaries of the Trust. I am satisfied that the purposes of the order are to meet the wholly necessary requirement that one or more of the Trust’s  properties be disposed of in order to be able to meet the ongoing costs of   Ms van Boxel’s care as the trustees are empowered to do.

[10]   Finally I order that the following properties, registered to the names of Karel Aloysius van Boxel, Patricia Anne van Boxel and Nikos Jason as trustees of The Sophie-Michael Trust be vested in Karel Aloysius van Boxel and Nikos Jason as continuing trustees of the Trust:

(a)Apartment 3G, 23 Upper Queen Street, Newton, Auckland City, being Unit 3G and AU 27 and a 1/8th share in AU46 DP 166042, identifier NA100D/11.

(b)Unit A, 530 Manukau Road, Epsom, Auckland City, being Unit A and AU 1-2 DP 87242, identifier NA44D/1041.

(c)Apartment 104, 135 Vincent Street, Auckland City, being Unit 104 DP 384099, identifier 336145.

(d)Apartment 203, 135 Vincent Street, Auckland City, being Unit 203 DP 384099, identifier 336156.

(e)Apartment 703, 135 Vincent Street, Auckland City, being Unit 703 DP 384099, identifier 336201.

3 At [18].

(f)Apartment 1107 and carpark 31, 135 Vincent Street, Auckland City, being Unit 1107 and AU 31 DP 384099, identifier 336243.

[11]The costs of this application shall be costs in the Trust.

Muir J