Webb Farry Trustee Services Limited Pringle - [2020] NZHC 256

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2020-412-000005

[2020] NZHC 256

UNDER the Trustee Act 1956

IN THE MATTER

of an application for vesting orders in respect of the Pringle Family Trust

BETWEEN

WEBB FARRY TRUSTEE SERVICES LIMITED

Applicant

AND

EARLE DAVID PRINGLE

Respondent

Hearing: Determined on the papers

Counsel:

L Jensen-McCloy and K Jarvis for Applicant

Judgment:

25 February 2020

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 25 February 2020 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

WEBB FARRY TRUSTEE SERVICES LITD v PRINGLE [2020] NZHC 256 [25 February 2020]

The application

[1] The applicant, Webb Farry Trustee Services Ltd, is one of two trustees of the Pringle Family Trust (the Trust). The other trustee is the respondent (Mr Pringle) who suffers from dementia and is unable to perform his duties. The applicant seeks orders removing Mr Pringle as a trustee and vesting title in the property of the Trust in it as the sole continuing trustee. In addition, the applicant is seeking associated orders for leave to commence the proceeding by way of originating application, that service of the proceeding be dispensed with, and that no litigation guardian be appointed to represent Mr Pringle.

Background

[2] Mr Pringle settled the Trust by deed dated 18 April 2007. Mr Pringle is the settlor and appointer of the Trust as well as being one of the trustees. The other trustee is the applicant.

[3] The beneficiaries of the Trust are Mr Pringle and his children. Mr Pringle has three children, all of whom have made affidavits consenting to the application.

[4] The only asset of the Trust is a property at 1 Duthie Street, Milton contained in Record of Title OT7B/1458 (Duthie Street).

[5] Mr Pringle suffers from severe dementia and he is not capable of making decisions about his property, finances, health or welfare. In October 2016, he was assessed over a two-week period in the Psycho-geriatric Ward of Dunedin Hospital and diagnosed with dementia. His family was advised that he needed dementia-level rest home care. In November 2016, he moved to Ashlea Grove Rest Home in Milton.

[6] There is before the Court medical evidence from Mr Pringle’s general practitioner, Dr Jane Gardner of Milton, certifying that he is mentally incapable of managing his property and personal care. There is also evidence from one of Mr Pringle’s sons stating that Mr Pringle has no comprehension or memory and is unable to communicate in any meaningful way and has no interest in doing so.

[7] This application arises because since Mr Pringle went into Ashlea Grove the Duthie Street property has been unoccupied and is deteriorating. There are no funds for its maintenance. It is in the interests of the beneficiaries that the property be sold and the proceeds of sale invested. This is not possible as Mr Pringle is a registered owner in his capacity as…

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 256
Decision Date: 25 February 2020

CaseChat Overview and Summary

In the case of Webb Farry Trustee Services Limited v Pringle, the High Court of New Zealand was asked to consider an application for vesting orders in respect of the Pringle Family Trust. The applicant, Webb Farry Trustee Services Limited, sought orders removing the respondent, Earle David Pringle, as a trustee of the Trust and vesting title in the property of the Trust in the applicant as the sole continuing trustee. The respondent suffers from dementia and is unable to perform his duties as a trustee. The applicant also sought associated orders for leave to commence the proceeding by way of originating application, that service of the proceeding be dispensed with, and that no litigation guardian be appointed to represent the respondent.

The legal issues before the court were whether the applicant was entitled to bring the proceeding by way of originating application, whether service of the proceeding should be dispensed with, whether a litigation guardian should be appointed for the respondent, and whether the respondent should be removed as a trustee and the property vested in the applicant. The court held that the proceeding could be brought by way of originating application in the interests of justice, that service of the proceeding should be dispensed with as it was unopposed and did not require particularised pleadings, and that a litigation guardian should not be appointed for the respondent as his interests would be protected by the continuing trustee. The court also held that the respondent should be removed as a trustee and the property vested in the applicant as the sole continuing trustee.

The court's reasoning was that the proceeding was suitable to be commenced by way of originating application as it did not raise difficult issues and was unopposed. The court also held that it was appropriate to dispense with service of the proceeding as it was purely administrative in nature and did not involve the appointment of a new trustee. The court held that it was appropriate to dispense with the requirement for a litigation guardian as the respondent was incapable of fulfilling his duties as a trustee due to his illness and would not be able to provide any instructions or understand any advice that he might receive from a litigation guardian. Finally, the court held that it was appropriate to remove the respondent as a trustee and vest the property in the applicant as the sole continuing trustee as there were no suitable persons available or willing to be appointed as a trustee.

The final orders of the court were that leave was granted to bring the proceeding by way of originating application, that service of the proceeding on the beneficiaries and the respondent be dispensed with, that the respondent be removed as a trustee of the Trust, that the interest of the Trust in the property at 1 Duthie Street, Milton vest in the applicant as the sole continuing trustee, and that the costs of and incidental to bringing the proceeding be met from the resources of the Trust. The court also reserved leave to the applicant to further apply.

Orders