Wedding v Askew - [2019] NZHC 3147

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1753

[2019] NZHC 3147

UNDER The Trustee Act 1956 and Part 18 of the High Court Rules

IN THE MATTER

Of an application for a vesting order under s 52 of the Trustee Act 1956 in relation to the Askew Family Trust, formed by a Deed of Trust dated 24 June 2005

BETWEEN

SUZANNE PATRICIA WEDDING AND RAEWYN GRIFFITHS

Plaintiffs

AND

DAVID JOHN ASKEW

Defendant

Hearing: On the papers

Counsel:

M E Casey QC for Plaintiffs

Judgment:

2 December 2019

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 2 December 2019 at 3:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Martelli McKegg, Auckland

WEDDING AND GRIFFITHS v ASKEW [2019] NZHC 3147 [2 December 2019]

[1] The plaintiffs, Suzanne Patricia Wedding (Mrs Wedding) and Raewyn Griffiths apply for a vesting order pursuant to s 52 of the Trustee Act 1956 in relation to the residential property at 31 Seaforth Avenue, Mangere Bridge (Seaforth Avenue), which is held by the plaintiffs and the defendant, David John Askew (Mr Askew), as trustees of the Askew Family Trust (the Trust) which was established on 24 June 2005.

[2] The plaintiffs have commenced the proceeding under Part 18 of the High Court Rules1 seeking an order vesting the property in their names, together with the costs of and incidental to their application. The proceedings were served on the defendant on Tuesday, 24 September 2019, as evidenced by an affidavit of service sworn by Frederick Potts on 27 September 2019. The defendant has taken no steps in the proceeding and as 25 working days have passed since he was served, pursuant to rule 15.9(2) the plaintiffs request that the proceeding be listed for formal proof and dealt with on the papers, which include a substantive affidavit by Mrs Wedding setting out the history of the Trust and the defendants’ involvement in the Trust as a trustee and his bankruptcy.

[3] When the Trust was established by deed on 24 June 2005, the plaintiffs and the defendant were named as the three trustees. Soon after the Trust was established the Seaforth Avenue property was transferred by Ms Wedding and the defendant to the Trust, the transfer being noted on the Computer Freehold Register as having been effected on 13 July 2005.

[4] Mrs Wedding explains in her affidavit that contemporaneously with the transfer of Seaforth Avenue to the Trust, the Trust signed an acknowledgement of debt in favour of herself and the defendant for the agreed value of the property. It was intended that the debt would be reduced by means of a series of deeds of forgiveness of debt.

[5] Mrs Wedding explains in her affidavit that she and the defendant separated in November 2005, leaving her and her daughters residing in the property.

[6] On 14 June 2011 the defendant was adjudicated bankrupt. Annexed to Mrs Wedding’s…

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 Wedding v Askew

Details

AGLC: Wedding v Askew [2019] NZHC 3147
Case: [2019] NZHC 3147
Decision Date: 2 December 2019

CaseChat Overview and Summary

The plaintiffs, Suzanne Patricia Wedding and Raewyn Griffiths, applied for a vesting order under the Trustee Act 1956 in relation to the Askew Family Trust, which holds the residential property at 31 Seaforth Avenue, Mangere Bridge. The defendant, David John Askew, is one of the trustees of the Trust, along with the plaintiffs. The plaintiffs sought an order vesting the property in their names, along with costs, pursuant to section 52 of the Trustee Act 1956. The defendant, who had been adjudicated bankrupt, did not respond to the application.

The court had to decide whether the defendant's bankruptcy disqualified him from continuing as a trustee of the Trust, and whether the plaintiffs were entitled to a vesting order of the property. The court found that the defendant's bankruptcy disqualified him from continuing as a trustee of the Trust, and that the plaintiffs were entitled to a vesting order of the property. The court held that the defendant's adjudication as a bankrupt engaged paragraph 24.1 of the trust deed which provided that upon being adjudicated bankrupt, the defendant ceased to be a trustee and was not capable of exercising any power or discretion whatsoever as a trustee or otherwise under the deed of trust. The court further held that section 52(1)(b)(i) and (3) of the Trustee Act 1956 provided that the court may make a vesting order of the property in the names of the remaining trustees.

The court made a vesting order vesting the Seaforth Avenue property in the names of the plaintiffs as trustees of the Trust. The court also made an order directing the defendant to pay to the plaintiffs the costs and disbursements of the proceeding in the sum of $4,464.50. The court found that the defendant had failed to cooperate by executing a transfer as requested by the plaintiffs, and that it was appropriate to make a vesting order in the plaintiffs' favour.

Orders