West v West

[2019] NZHC 3400

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2019-425-138

[2019] NZHC 3400

UNDER

Part 19 of the High Court Rules 2016 and the Trustee Act 1956

IN THE MATTER

of an application for a vesting order

BETWEEN

RAYMOND LYNN WEST and CORINNE

MOANA WARD as trustees of the West Family Trust

Applicants

AND

JEAN MARGARET WEST

Respondent

Hearing:	18 December 2019 (On the papers)
Counsel:	A C Ward for the Applicants
Judgment:	18 December 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 18 December 2019 at 3.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 18 December 2019

WEST v WEST [2019] NZHC 3400 [18 December 2019]

[1]The applicants are the present trustees of the West Family Trust (“the Trust”).

[2]                 The respondent, Jean Margaret West (“Jean”) is the mother of Corinne Moana Ward (“Corinne ”) and the wife of Raymond Lynn West (“Raymond”), the applicants. Raymond and Jean were the settlors and original trustees of the Trust which was created in May 2009.

[3]                 Unfortunately, Jean was diagnosed with dementia in 2016 and by the start of 2019 was diagnosed as suffering from advanced dementia. Her doctor’s opinion is that there is no prospect of Jean recovering.

[4]                 As a  result  of  Jean  losing  capacity,  she  was  removed  as  a  trustee  on  16 October 2019 under s 43 of the Trustee Act 1956 (“the Act”) and the powers created by the Trust Deed. Corinne was appointed replacement trustee at the same time.

[5]                 The applicants explain that the Trust owns a property in Cromwell. The registered proprietors of the property are the original trustees.

[6]                 While the deed of appointment of new trustee in place of incapacitated trustee was effective to remove Jean as trustee, the present trustees need to seek a vesting order under s 52 of the Act to enable the registration of the transfer of the Cromwell property from the names of the original trustees to the present trustees. The order is required because Jean lacks the capacity to sign an instruction and authority form to enable the registration to occur.

[7]                 To give effect to the vesting order and to deal with issues as to service and representation, the applicants also apply for the following orders:

(i)leave to commence these proceedings by way of an originating application;

(ii)dispensing with service of the originating application on the respondent and any other party;

(iii)an order that the respondent need not be represented by a litigation guardian.

[8]                 Leave is granted for this application be brought by way of originating application. With the removal of Jean as a trustee, this application while important, is in a sense administrative in nature. It is appropriate that it be brought in the most efficient and cost effective manner.

[9]                 I also direct that it is not necessary for Jean to be represented by a litigation guardian. Rule 4.30 of the High Court Rules 2016 requires Jean to have a litigation guardian unless the Court orders otherwise. I am satisfied that nothing would be gained from such an appointment given the nature of the application, the fact that Jean has already been removed as trustee and her lack of capacity.

[10]              I am also satisfied that it is not necessary to serve anyone else with the application. The application does not alter the rights of the beneficiaries. The vesting order simply brings the names of the registered proprietors of the Cromwell property into line with the identity of the current trustees.

[11]              The substantive order sought is a vesting order under s 52 of the Act. Given the amendment to the make up of the trustees of the Trust, it is necessary that the new trustees have the ability to deal with the Trust property.

[12]              Accordingly, there is an order vesting the land situated at 7A and 7B Sarita Place, Cromwell, being Lot 74 Deposited Plan 19323, contained in Record of Title OT12C/1398, Otago Land Registration District in Raymond Lynn West and Corinne Moana Ward as trustees of the West Family Trust.

Associate Judge Lester

Solicitors:

Ward Adamas Bryan-Lamb, Invercargill