Wethey v Wethey - [2015] NZHC 493

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV2015-409-000114 [2015] NZHC 493

BETWEEN
TERESA MARY WETHEY, ANTHONY

JAMES FRANK WILDING, DAVID WILFRED FRANK WILDING as trustees of the AFW and D J Wilding Family Trust Plaintiffs

AND

TERESA MARY WETHEY, DAPHNE JUDITH WILDING, AND ANTHONY FREDERICK WESTALL WILDING as former trustees of the AFW and D J Wilding Family Trust

Defendants

Hearing: 17 March 2015 (On the papers)

Appearances:

DWF Wilding for Plaintiffs

Judgment:

17 March 2015

JUDGMENT OF NATION J

[1] In these proceedings the plaintiffs apply under s 52 of the Trustee Act 1956 (the Act) for an order vesting the title to two properties owned by AFW and DJ Wilding Family Trust (the Trust) in the names of the present trustees. The application is made under part 18 of the High Court Rules.

[2] Counsel for the plaintiffs has acknowledged that no application for directions as to service has been made as would normally be required under r 18.7. Counsel’s explanation for this is outlined in their memorandum and supported by an affidavit from one of the plaintiffs, Teresa Mary Wethey, who is a continuing trustee of the Trust. She is also named as one of the defendants being an original trustee. The other defendants named are the two other original trustees. One of these trustees,
Daphne Wilding, has died. The other, Anthony Wilding, lacks capacity.

WETHEY AND ORS v WETHEY AND ORS [2015] NZHC 493 [17 March 2015]

[3] Teresa Wethey, a solicitor has sworn an affidavit in which she explains how Anthony James Frank Wilding (James Wilding) of Christchurch, and David Wilfred Frank Wilding (David Wilding) have come to be appointed as trustees of the Trust in association with her as a continuing trustee. Daphne Wilding purported to appoint James Wilding as a trustee of the Trust in her will. In her will she had also appointed her husband, Anthony Wilding, to exercise any powers of appointment she might have had in respect of the Trust. Because there was some doubt as to the validity of Daphne’s appointment of James Wilding by her will and because Anthony Wilding lacks the capacity to exercise any powers of appointment, Teresa Wethey appointed James Wilding as co-trustee pursuant to s 43(1) of the Act. Her reasons for appointing James Wilding as a trustee are explained in the deed of appointment (dated 5 February 2015) and confirmed in her affidavit (dated 3 March 2015).

[4] Following the appointment of James Wilding as a trustee, Teresa Wethey and James Wilding as trustees appointed David Wilding, a solicitor in Christchurch, as a third trustee in place of Anthony. David Wilding is Anthony Wilding’s nephew. Teresa Wethey and James Wilding made this appointment by deed dated
12 February 2015, pursuant to their powers as continuing trustees under s 43 and/or pursuant to cl 13 of the trust deed for the Trust. In her affidavit, Teresa Wethey explained that David Wilding was appointed as a third trustee because both Anthony and Daphne…

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 Wethey v Wethey

Details

AGLC: Wethey v Wethey [2015] NZHC 493
Case: [2015] NZHC 493
Decision Date: 17 March 2015

CaseChat Overview and Summary

In the matter of Wethey v Wethey, the plaintiffs sought an order vesting the title to two properties owned by the AFW and DJ Wilding Family Trust in the names of the present trustees. The plaintiffs were trustees of the Trust, while the defendants were former trustees of the Trust. The application was made under s 52 of the Trustee Act 1956. The court had to consider whether the vesting orders sought by the plaintiffs were appropriate and whether the beneficiaries of the Trust should be served with the proceedings.

The court found that the successive appointments of James Wilding and David Wilding as trustees of the Trust appeared to have been properly made in accordance with the powers available to the trustees. The court also found that the vesting of titles in the names of the present trustees was urgent because the trustees needed to use the properties as security for a loan to assist in meeting the costs of day-to-day care for Anthony Wilding, one of the beneficiaries of the Trust. The court considered that the vesting of titles in the present trustees would not change any of the beneficiaries' rights in respect of the appointments which had already been made. The court also found that the beneficiaries of the Trust were not parties who were interested in, or who may be adversely affected by the relief sought by the plaintiffs. Therefore, the court did not consider it necessary to serve the beneficiaries with the proceedings.

The court found that the vesting orders sought by the plaintiffs were appropriate given the need to recognise the appointment of the current trustees of the Trust and to ensure the trustees could deal with land owned by the Trust in terms of their obligations as trustees. The court made orders in terms of the draft orders filed by the plaintiffs.

Orders