Wagner v Wagner

[2018] NZHC 3120

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-65

[2018] NZHC 3120

UNDER

the Trustee Act 1956

IN THE MATTER

of the RB & MJ Wagner Family Trust

BETWEEN

GARRY BRUCE WAGNER

First Applicant

ROBYN MAREE HOGG

Second Applicant

MICHAEL STEPHEN WAGNER

Third Applicant

NELSON TRUSTEES WAGNER LIMITED

Fourth Applicant

AND

MARGARET JOAN WAGNER

Respondent

Hearing:	On the papers
Counsel:	D N Jackson for Applicants
Judgment:	29 November 2018

JUDGMENT OF CLARK J

Introduction

[1]                   Garry Wagner, Robyn Hogg, Michael Wagner and Nelson Trustees Wagner Ltd (the applicants) are the trustees of the R B & M J Wagner Family Trust (the Trust). They apply under s 52 of the Trustee Act 1956 for orders:

(a)vesting in themselves as trustees of the Trust, the properties at 37 Beach

WAGNER v WAGNER [2018] NZHC 3120 [29 November 2018]

Road, Richmond (certificate of title NL1D/622) and 247 Pugh Road, Hope (certificate of title NC6D/1307);

(b)dispensing with service of the originating application; and

(c)dispensing with the requirement for appointment of a litigation guardian.

[2]                   Robert Wagner, Margaret Wagner and Patrick John Adamson are registered proprietors of the land at Beach Road and Pugh Road. Until 13 July 2018 when she was removed and replaced as a trustee due to incapacity Margaret Wagner was a trustee of the Trust.

Background

[3]                   The Trust was constituted by a Deed of Trust dated 1 March 1995. At that time, the trustees were Robert Wagner, Ronald Fletcher and Patrick Adamson. Robert Wagner is the settlor. Pursuant to cl 23 of the Trust Deed, the power of appointment of new trustees is vested in the trustees.

[4]                   On 17 July 2002 Ronald Fletcher was replaced by Margaret Wagner as a trustee of the Trust.

[5]                   By a Deed of Replacement and Retirement of Trustees dated 13 July 2018 Robert Wagner and Patrick John Adamson retired as trustees, Margaret Wagner was removed and Nelson Trustees Wagner Ltd, Garry Wagner, Robyn Hogg and Michael Wagner were appointed as the new trustees of  the Trust.  By  cl  4,  the Trust Fund vested in the new trustees on the terms of the Trust Deed.

Evidence

[6]Affidavits have been filed by:

(a)Robert Bruce Wagner, partner of Margaret Wagner;

(b)Garry Bruce Wagner, son of Margaret Wagner;

(c)Robyn Hogg, daughter of Margaret Wagner;

(d)Michael Wagner, son of Margaret Wagner, and

(e)Ronald Thomson, director of Nelson Trustees Wagner Ltd, a trustee company created to act as an independent trustee for the Trust.

[7]                   Each affiant deposes to the fact Ms Wagner has progressive dementia and lacks capacity to make decisions for herself and seeks the orders sought in the originating application.

[8]                   Critical, to my mind, is the affidavit evidence of Janice Jolly, who has been Margaret Wagner’s general practitioner for approximately 30 years. Dr Jolly examined Ms Wagner on 26 July 2018. Dr Jolly assessed Margaret Wagner as lacking capacity to make decisions about her affairs or execute legal documents due to progressive dementia.

Commencement of application by originating application without notice

[9]                   Typically, proceedings of a straightforward nature not requiring detailed pleadings, or interlocutory orders and where the issues are both confined and clearly defined are thought to be suitable to the originating application procedure.1

[10]               Where, however, careful pleadings are needed to identify the precise nature of the issues, or interlocutory steps such as discovery may be required, the originating application procedure is unlikely to be appropriate.2 The procedure may be used where there is an opposing party but it is, in relation to contested proceedings, an exceptional procedure.3

[11]               In this case, I consider it is appropriate to proceed by way of originating application. The application is uncontentious. All beneficiaries approve the proposal and the proceeding is in the interests of Ms Wagner who is no longer able to represent

1      Hong Kong and Shanghai Banking Corp Ltd v Erceg (2010) 20 PRNZ 652 (HC) at [22]–[26].

2 At [26].

3 At [26].

her own interests. The purpose of the application is to vest the Trust property in the new trustees. The procedural requirements governing the commencement of a proceeding by originating application are all satisfied. It is in the interests of justice the proceeding be commenced by way of originating application.4

Service

[12]               The substantive application has been filed without notice. Rule 7.23 applies, with all necessary modifications, to proceedings commenced by originating application.5 Rule 7.23 provides:

7.23     Application without notice

(1)A person who wants to make an application to the court and have the application determined without any other party having been served (in these rules referred to as an application without notice) must use form G 32.

(2)An application without notice may be made only—

(a)on 1 or more of the following grounds:

(i)that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant:

(ii)that the application affects only the applicant:

(iii)that the application relates to a routine matter:

(iv)that an enactment expressly permits the application to be made without serving notice of the application:

(v)that the interests of justice require the application to be determined without serving notice of the application; and

(b)if the applicant has made all reasonable inquiries and taken all reasonable steps to ensure that the application and supporting documents contain all material that is relevant to the application, including any defence that might be relied on by any other party and any facts that would support the position of any other party.

(3)An applicant who makes an application without notice must, if the application is of a kind that is likely to be contested if it were made on notice, file a memorandum with the application that sets out—

4      High Court Rules, r 19.5.

5      Rule 19.10(e).

(a)the background to the proceeding (including the material facts that relate to the proceeding); and

(b)the grounds on which each order is sought; and

(c)an explanation of the grounds on which each order is sought without notice; and

(d)all information known to the applicant that is relevant to the application, including any known grounds of opposition or defence that any other party might rely on, or any facts that would support opposition to the application or defence of the proceeding by any other party.

(4)Failure to disclose all relevant matters to the court or to comply with subclause (3) may result in the court—

(a)dismissing the application; or

(b)if 1 or more orders have been made by the court in reliance on the application, rescinding those orders.

(5)This rule does not apply to an application for a grant of letters of administration without notice

[13]               I accept it is in the interests of justice for the application to be made without notice. The proceeding is uncontentious. Ms Wagner has progressive dementia and  is unable to participate in the proceedings. The application is made in the appropriate form.

[14]               There is no evidence before me as to whether the discretionary beneficiaries (the spouses and children of the final beneficiaries) consent to the order. But, I consider service is unnecessary as the vesting orders will not adversely affect their rights or interests. The application is for an administrative step to enable the Trust to continue operating.6

Litigation guardian

[15]               Rule 4.30 requires an incapacitated person to be represented by a litigation guardian unless the court otherwise orders. In Docherty v Docherty Associate Judge Bell considered, on facts similar to this case, a litigation guardian was unnecessary.7 Judge Bell observed the respondent had been properly removed as a trustee on the

6      See Cunningham v Cunningham [2016] NZHC 1075 at [15].

7      Docherty v Docherty [2013] NZHC 1885.

basis of medical evidence that he was quite incapable of acting as a trustee.8 It was appropriate a vesting order followed. There was no sensible basis for an argument that, even though the respondent was removed as a trustee, he should still be shown as a registered proprietor of trust assets.9

[16]               Similar considerations apply here. The relief the applicants seek is strictly limited to the vesting orders and does not otherwise impact Ms Wagner. Appointing a litigation guardian is inappropriate in the context of this application.

Trustee Act application

[17]               Under s 52(1)(b)(i) of the Trustee Act the Court may vest land in trustees where a trustee entitled to, or possessed of, any land, either solely or jointly with another person, is under a disability.   On the basis of Dr Jolly’s  evidence I am satisfied     Ms Wagner is under a disability in terms of s 52. The applicants are the new trustees of the Trust, having replaced Robert Wagner and John Adamson, the old trustees. I am satisfied it is appropriate to make an order vesting the property in the new trustees.

Orders

[18]The following orders are made:

(a)Title to the properties at 37 Beach Road, Richmond (certificate of title NL1D/622) and 247 Pugh Road, Hope (certificate of title NC6D/1307) is vested in the following persons as trustees of the R B & M J Wagner Family Trust:

Garry Bruce Wagner Robyn Maree Hogg

Michael Stephen Wagner Nelson Trustees Wagner Ltd

(b)It is in the interests of justice for the proceeding to be commenced by originating application and permission is accordingly granted.

8 At [27].

9 At [28].

(c)The application is appropriately made without notice.

Karen Clark J

Solicitors:

Hamish.Fletcher, Nelson for Applicants