Wells v Young - [2019] NZHC 561

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-20

[2019] NZHC 561

UNDER the Trustee Act 1956

BETWEEN

DENNIS EDWARD WELLS

Applicant

AND

SHIRLEY MAUREEN YOUNG

Respondent

On the papers

Appearances:

RE Kettlewell for Applicant

Judgment:

25 March 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 25 March 2019 at 4.15 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

WELLS v YOUNG [2019] NZHC 561 [25 March 2019]

Introduction

[1] The Shirley Young Family Trust (“the Trust”) was settled by Shirley Maureen Young (“Mrs Young”) by deed of trust dated 27 July 1994. The trustees of the Trust are Mrs Young and Dennis Edward Wells (together, “the current trustees”). In that capacity, they are the registered proprietors of a residential property at 98 Edgecumbe Road, Tauranga being the land comprised in Record of Title Identifier No. SA28A/487, South Auckland Land Registration District, being Lot 1 on Deposited Plan South Auckland 32068 (“the Land”).

[2] Mrs Young is aged 86 years. She is now in long term residential care at Radius Care Matua in Tauranga. I am satisfied by the evidence of Mrs Young’s daughter Amber L’von McLean (“Amber”) and a certificate signed by Dr Anna Ryan, a general practitioner, dated 24 January 2019 that Mrs Young suffers from vascular dementia and that she is mentally incapable, in that she lacks the capacity to make decisions about her personal care, welfare or finances. It follows that she does not have the mental capacity to exercise her powers and duties as a trustee of the Trust.

[3] The applicant, Mr Wells, seeks orders removing Mrs Young as a trustee of the Trust and replacing her as trustee with Amber. Amber and Mr Wells agree that the Land should be sold and the proceeds applied to Mrs Young’s care. They seek an order vesting the Land in the new trustees.

Application for leave to commence the proceeding by originating application and directions as to service

[4] This is not the type of proceeding that can be commenced by way of originating application as of right pursuant to rr 19.2 to 19.4 of the High Court Rules 2016. However, the Court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application. Such permission may be sought without notice.1 Mr Wells seeks leave to bring this proceeding as an originating application under Part 19 of the High Court Rules 2016.

[5]The beneficiaries of the Trust are:

1 High Court Rules 2016, r 19.5.

(a)Mrs Young;

(b)Amber; and

(c)any grandchild or grandchildren of Mrs Young.

[6] There is no point in serving the proceeding on Mrs Young. Moreover, because the proceeding does not involve any disputed questions of fact and there is no opposing party, it is not necessary in the interests of justice for there to be a particularised pleading or to follow the usual interlocutory steps…

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 Wells v Young

Details

AGLC: Wells v Young [2019] NZHC 561
Case: [2019] NZHC 561
Decision Date: 25 March 2019

CaseChat Overview and Summary

In the High Court of New Zealand Tauranga Registry, Dennis Edward Wells, as an applicant, sought the removal of Shirley Maureen Young as a trustee of the Shirley Young Family Trust and the appointment of Amber L’Von McLean as a new trustee. The Trust was settled by Mrs Young and is registered in her and Mr Wells' names as trustees. Mrs Young, aged 86, is in long-term residential care and has been diagnosed with vascular dementia, rendering her incapable of making decisions about her personal care, welfare, or finances. The applicant and Mrs Young's daughter, Amber, agreed that the residential property should be sold and the proceeds applied to Mrs Young's care.

The court was required to decide whether it could grant leave to commence the proceeding as an originating application, whether it could remove Mrs Young as a trustee, and whether it could vest the property in the new trustees. The court found that it was appropriate for the proceeding to be brought as an originating application, as there were no disputed questions of fact, and no opposing party was present. The court also found that it had the authority to remove Mrs Young as a trustee under section 51(1) of the Trustee Act 1956 and to vest the property in the new trustees under section 52(1)(h) of the Act.

The court granted leave to commence the proceeding as an originating application and dispensed with service of the proceeding. The court ordered that Mrs Young be removed as a trustee of the Shirley Young Family Trust and that Amber be appointed as a new trustee. The court also ordered that the property be vested in Dennis Edward Wells and Amber L’Von McLean as trustees of the Shirley Young Family Trust.

Orders