Warnock v Swan

[2018] NZHC 931

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2018-483-7

[2018] NZHC 931

UNDER

the Trustee Act 1956

IN THE MATTER

of an application for a Vesting Order

BETWEEN

JEANNIE MARGARET WARNOCK

Applicant

AND

GORDON SYDNEY SWAN

Respondent

Hearing:	On the papers
Counsel:	L J Douglas for Applicant
Judgment:	3 May 2018

JUDGMENT OF CHURCHMAN J

Introduction

[1]By application of 10 April 2018, the applicant sought the following orders:

(a)leave to commence proceedings by originating application;

(b)leave to dispense with service on the respondent;

(c)leave to dispense with service on any other person including the remaining trustees of all trusts, executors of all the estates and beneficiaries of such trusts and estates in relation to which Gordon Sydney Swan is named as a trustee or executor; and

WARNOCK v SWAN [2018] NZHC 931 [3 May 2018]

(d)that the respondent does not need to be represented by a litigation guardian.

[2]                 By a separate without notice originating application dated 10 April 2018, the applicant sought a vesting order under s 52 of the Trustee Act 1956 in relation to various specified properties that the respondent was registered as proprietor of, or as having an interest in.

Facts

[3]                 The applicant is the daughter of the respondent. The applicant is also the holder of an enduring power of attorney for the respondent dated 29 September 2017. The applicant is a solicitor practising in Wellington.

[4]                 The respondent was a solicitor who practised in Whanganui for some 63 years up until 2014.

[5]                 The respondent is the trustee in a number of trusts that own or have interests in land. He is also the executor of various states that own or have interests in land.

[6]                 The respondent is mentally incapacitated and can no longer carry out the duties or obligations required of a trustee and/or executor.

Orders

[7]                 Having reviewed all the documentation for this application, in particular the extensive affidavit of the applicant, I am satisfied that this is an appropriate case for the granting of all the orders sought.

[8]I therefore make the orders sought in the application dated 10 April 2018 for:

(a)leave to commence the proceedings by originating application;

(b)leave to dispense with service on the respondent;

(c)leave to dispense with service on any other person, including the remaining trustees of all trusts, executors of all the estates, and beneficiaries of such trusts and the states in relation to which Gordon Sydney Swan is named as a trustee or executor; and

(d)that the respondent does not need to be represented by a litigation guardian.

[9]                 I am also satisfied that the grounds are made out for the vesting order sought by separate application dated 10 April 2018 vesting all land and interests registered at Land Information New Zealand in the name of Gordon Sydney Swan and the names of the remaining trustees and/or remaining executors shown as registered proprietors or as having interests in land in relation to such properties.

[10]              The applicant filed, with the originating application, a draft vesting order and the form of that draft order is approved.

Churchman J

Solicitors:
Treadwell Gordon, Solicitors, Whanganui for Applicant