Waiwiri v Thomson (aka Hayes) - [2020] NZHC 3052

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2020-470-106

[2021] NZHC 3052

UNDER Part 19 of the High Court Rules and section 52 of the Trustee Act 1956

IN THE MATTER

of an application seeking vesting orders in respect of Trust property

BETWEEN

NICOLA ANNE WAIWIRI, WAYNE RUSSELL JONES DESMOND LESLIE KITE

MAXWELL THOMAS KIMBALL GRAY AND PETER PHILIP BUTLER as Trustees of the Estate of ROGER KEITH
THOMSON
Applicants

AND

CAROL ELIZABETH THOMSON (Also known as CAROL ELIZABETH HAYES

Respondent

Hearing: On the papers

Appearances:

R Adams for the Applicants

Judgment:

18 November 2020

JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 18 November 2020 at 3.45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Adams law, Tauranga rachael@adamaslaw.co.nz

WAIWIRI v THOMSON [2021] NZHC 3052 [18 November 2020]

Introduction

[1] The applicants, who are the Trustees of the estate of the late Roger Thomson (Mr Thomson) seek a vesting order in respect of a one half share in a property at 5 Torbin Place, Papamoa (the property) together with associated orders:

(a)permitting the application to be brought under Part 19 of the High Court Rules 2016;

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

(c)directing that the respondent not require a litigation guardian as her representative pursuant to r 4.3 of the High Court Rules.

Background

[2] Mr Thomson’s estate comprises one asset only, a half share in the property. The other half share is owned by the respondent on her own account.

[3] The terms of Mr Thomson’s will (the will) provided for the appointment of the applicants (apart from solicitor Mr Peter Butler), together with Mrs Thomson as trustees and executors. Mrs Thomson was left a life interest in the estate’s half share in the property with the residue passing to Mr Thomson’s children by a former marriage, Ms Nicola Waiwiri and Mr Grant Thomson.

[4] Mrs Thomson’s personal affairs are managed by her son from a former marriage, Mr Wayne Jones.

[5] Mrs Thomson has advanced dementia with no prospect of recovery. Affidavit evidence in support of the application includes a report from psychiatrist Dr Andrew Wilkinson dated 20 August 2020 confirming Mrs Thomson does not have the ability to discharge her functions as trustee, being unable to understand the tasks required of her nor perform them. He describes her as having very poor memory and being disoriented in time and place.

[6] By Deed of Removal and appointment dated 25 August 2020 Mrs Thomson was removed as a trustee of the estate by the remaining trustees on the basis of her ongoing incapacity.1 Mr Peter Butler, solicitor of Mt Maunganui, was appointed in her stead.

[7] Mrs Thomson requires full time residential care and is incurring significant costs which she does not have the means to meet without access to her equity in the property. The trustees and Mr Jones are agreed that the…

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.

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Details

Case: [2020] NZHC 3052
Decision Date: 18 November 2020

CaseChat Overview and Summary

In Waiwiri v Thomson (aka Hayes), Nicola Anne Waiwiri, Wayne Russell Jones, Desmond Leslie Kite, Maxwell Thomas Kimball Gray, and Peter Philip Butler, as trustees of the estate of the late Roger Keith Thomson, sought a vesting order in respect of a one-half share in a property at 5 Torbin Place, Papamoa. The other half share was owned by Carol Elizabeth Thomson (also known as Carol Elizabeth Hayes). The applicants sought various orders, including permission to bring the application under Part 19 of the High Court Rules, dispensation from serving the application and affidavits, and a direction that the respondent need not require a litigation guardian as her representative.

The legal issues before the court were whether the application could be brought under Part 19 of the High Court Rules, whether service of the application and affidavits could be dispensed with, and whether the respondent needed a litigation guardian. The court held that the application could be brought under Part 19 of the High Court Rules as the interests of justice required it, and the application was uncontentious. The court also dispensed with service of the application and affidavits, noting the consent of the residuary beneficiaries, the agreement of the respondent's son and attorney, and the fact that no useful purpose could be served by engaging with the respondent.

Regarding the need for a litigation guardian, the court held that Mrs Thomson was an incapacitated person within the meaning of the High Court Rules, and a litigation guardian was required unless the court ordered otherwise. However, the court held that no useful purpose would be served by requiring the appointment of a litigation guardian, given that Mrs Thomson had been properly removed as a trustee for lack of mental capacity, and the vesting order was necessary to bring the registered position into conformity with the current named trustees.

The court made orders permitting the application to be brought under Part 19 of the High Court Rules, dispensing with service of the application and affidavits, directing that the respondent did not require a litigation guardian, and vesting a one-half share in the title to the property in the names of the applicants.

Orders