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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wagner v Wagner

Details

AGLC: Wagner v Wagner [2018] NZHC 3120
Case: [2018] NZHC 3120
Decision Date: 29 November 2018

CaseChat Overview and Summary

The High Court of New Zealand dealt with an application by trustees of the R B & M J Wagner Family Trust seeking orders vesting certain properties in them and dispensing with the need for service and a litigation guardian. The applicants were trustees of the Trust, and the respondent, Margaret Wagner, was previously a trustee but was removed due to incapacity. The applicants sought vesting of two properties in themselves, dispensing with service of the originating application, and dispensing with the requirement for a litigation guardian.

The court was required to determine whether the proceeding was appropriate for the originating application procedure, whether the application could be made without notice, and whether a litigation guardian was necessary. The court also needed to decide whether vesting the properties in the new trustees was appropriate under the Trustee Act 1956.

The court found that the proceeding was appropriate for the originating application procedure as it was uncontentious, in the best interests of the incapacitated respondent, and the procedural requirements were satisfied. The application could be made without notice as it was in the interests of justice and the vesting orders would not adversely affect the rights or interests of the discretionary beneficiaries. Appointing a litigation guardian was deemed unnecessary as the relief sought was strictly limited to vesting orders and did not otherwise impact the respondent. The court was satisfied that Margaret Wagner was under a disability within the meaning of the Trustee Act, and it was appropriate to make an order vesting the property in the new trustees.

The court made the following orders: (a) Title to the properties at 37 Beach Road, Richmond and 247 Pugh Road, Hope was vested in the applicants as trustees of the R B & M J Wagner Family Trust; (b) Permission was granted for the proceeding to be commenced by originating application; and (c) The application was appropriately made without notice.

Orders