Wally Webb Family Trust

[2022] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-1113

[2022] NZHC 1634

UNDER

Under rule 19.5 of the High Court Rules and sections 52 and 66 of the Trustee Act 1956

and the inherent jurisdiction of the Court

IN THE MATTER

Of an application for a Vesting Order in respect of a property at 350 Big Bay Road, Waiuku held in Certificate of Title NZ899/200 (North Auckland Land Registry) and for directions in relation to the

administration of a Trust

BETWEEN

JANINE MARIE ROE

Applicant

Hearing:	8 July 2022 (by telephone)
Counsel:	P Kennelly for the Applicant
Date of Minute:	13 July 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 13 July 2022 at 11.00 am pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel:
Kennelly Law, Orewa

Application for Vesting order – Wally Webb Family Trust [2022] NZHC 1634 [13 July 2022]

[1]    The applicant, Janine Roe, seeks a vesting order in respect of land at 350 Big Bay Road, Waiuku. Ms Roe is a trustee of the Wally Webb Family Trust which owns the land and the application is  necessary  because  the  previous  trustee,  Christopher Podwin, remains on the title, notwithstanding Mr Podwin’s resignation as a trustee and Ms Roe’s appointment.

[2]    As a preliminary matter Ms Roe sought permission for these proceedings to be made by way of originating application and an order dispensing service of the proceedings noting that the other trustee, Wallace Webb, had dementia and service of the proceedings would serve no useful purpose.

[3]    As it happened, the day before the hearing of this matter, convened by me as Duty Judge, Mr Webb passed away and as a result no issue now arises with regard to service, noting Mr Kennelly’s advice that Ms Roe and her husband are in any event Mr Webb’s executors.

[4]    Given this position, having read the applications and supporting evidence and having discussed the matter with Mr Kennelly, I am satisfied it is appropriate generally to grant the relief sought in both applications and make the following orders:

(a)the application is to be commenced by way of originating application;

(b)that service of these proceedings on any other party be dispensed with;

(c)that Janine Marie Roe replace Christopher Antony Podwin on the Certificate of Title of the property at 350 Big Bay Road, Waiuku held in Certificate of Title NA899/200 (North Auckland Land Registry); and

(d)that the reasonable costs of the application are to be met from the resources of the trust.

[5] It is noted that the relief at [4](c) above is not identical to that set out in the application. This is because Mr Kennelly confirmed that no relief was sought in relation to Mr Webb being named on the title, and that therefore a transfer of the property itself was not appropriate, rather a substitution of Ms Roe for Mr Podwin

more accurately reflects the substantive relief sought. Leave is however reserved to apply should further consequential orders be required as a result of Mr Webb’s death.

Powell J