Wason v Wason - [2017] NZHC 1453

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000349 [2017] NZHC 1453

UNDER the Trustee Act 1956

IN THE MATTER

of an application for orders under section
52 of the Act

BETWEEN

MURRAY DAVID WASON Applicant

AND

JOAN BEVERLEY WASON Respondent

Hearing: 27 June 2017 (Determined on the papers)

Counsel:

H C Carey for Applicant

Judgment:

28 June 2017

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS
as to vesting orders and service

Introduction

[1] The applicant (Mr Wason) and the respondent (Mrs Wason) are married. Together they settled the M & J Wason Family Trust (the Trust) and appointed themselves as trustees. Mrs Wason has since been removed as a trustee due to her mental incapacity. Mr Wason applies for an order vesting the Trust’s property in the new trustees.

[2] Mr Wason seeks permission to commence this proceeding by way of originating application. He also seeks an order that service of the application be
dispensed with.

WASON v WASON [2017] NZHC 1453 [28 June 2017]

Background

[3] Mr and Mrs Wason settled the Trust in August 2004. It was established to ensure the orderly succession of the family farm’s ownership following their death or separation. They appointed themselves as trustees, together with Worcester Trustee Services Limited (Worcester). The beneficiaries of the Trust are Mr and Mrs Wason
and the Dene Wason Family Trust.

[4] Cant
The

rbury 8

(a)

Trust’s property is the farm known as Russells Flat, Sheffield,

173 (the Properties), which is comprised of:

All that parcel of land containing 4.0471 hectares or thereabouts being

Rural Section 40741, comprised and described in Certificate of Title

CB33B/555, Canterbury Registry;

(b)

One half share of the parcel of land containing 40.4686 hectares or thereabouts being Rural Section 7439, comprised and described in

Certificate of Title CB3C/1299, Canterbury Registry;

(c)

One half share of the parcel of land containing 45.3248 hectares or

thereabouts being Rural Section 18378, comprised and described in

Certificate of Title CB430/11, Canterbury Registry;

(d)

One half share of the parcel of land containing 16.1874 hectares or thereabouts being Rural Section 14700 and Rural Section 18484,

comprised and described in Certificate of Title CB443/110, Canterbury Registry;

(e)

One half share of the parcel of land containing 21.0437 hectares or thereabouts being Rural Section 18924, comprised and described in

Certificate of Title CB8F/845, Canterbury Registry;

(f)

One half share of the parcel of land containing 4.4996 hectares or

thereabouts being Rural Section 19806, comprised and described in

Certificate of Title CB10F/196, Canterbury Registry;

e

(g)One half share of the parcel of land containing 20.2342 hectares or thereabouts being Rural Section 10684, comprised and described in Certificate of Title CB12K/445, Canterbury Registry;

(h)One half share of the parcel of land containing 8.0937 hectares or thereabouts being Rural Section 12527, comprised and described in Certificate of Title CB1C/1222, Canterbury Registry;

(i)One half share of the parcel of land containing 20.2342 hectares or thereabouts being Rural Section 10683, comprised and described in Certificate of Title CB22B/540, Canterbury Registry;

(j) The interest 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 Wason v Wason

Details

AGLC: Wason v Wason [2017] NZHC 1453
Case: [2017] NZHC 1453
Decision Date: 28 June 2017

CaseChat Overview and Summary

In the matter of Wason v Wason, the High Court of New Zealand dealt with an application by Mr Murray David Wason to vest the property of the M & J Wason Family Trust in new trustees. The respondents, Mrs Joan Beverley Wason, had been a trustee of the Trust but was removed due to her mental incapacity. Mr Wason, the remaining trustee, and Worcester Trustee Services Limited, the continuing trustee, appointed Karen and Dene Wason as trustees. The court had to decide whether Mr Wason could commence the proceeding by way of an originating application and whether service of the application should be dispensed with. The court also had to determine whether to make a vesting order in favour of the new trustees.

The court held that the application could proceed by way of an originating application in the interest of justice. The court also found that there was no need to serve the application on Mrs Wason, who was incapable of understanding or participating in the proceedings. The court further held that the vesting order was appropriate to ensure that the new trustees could deal with the Trust's property in accordance with their duties. The court did not make any order as to costs.

In conclusion, the court granted the application, allowed the proceeding to be commenced by way of an originating application, dispensed with service, and vested the Trust's property in the new trustees.

Orders