Wheeler v Wheeler

[2020] NZHC 3025

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2134

[2020] NZHC 3025

IN THE MATTER OF

The Trustee Act 1956

BETWEEN

STEVEN GRAHAM WHEELER

Plaintiff

AND

GRAHAM CLYDE WHEELER

Defendant

On the papers:	At Auckland
Judgment:	19 November 2020

JUDGMENT OF POWELL J

This judgment was delivered by me on 19 November 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

WHEELER v WHEELER [2020] NZHC 3025 [19 November 2020]

[1]                 The applicant, Steven Graham Wheeler, a trustee of the G C and R D Wheeler Family Trust (“the Trust”) has applied for the following orders:

(a)for permission to commence this proceeding by way of originating application;

(b)dispensing with service of the application on the respondent, Graham Clyde Wheeler; and

(c)to vest the property of the Trust currently owned by Steven Wheeler, Graham Wheeler and Raewyn Dawn Wheeler in Steven Wheeler and Julie Anne Unwin as the trustees of the Trust.

[2]                 The application is necessary because unfortunately Raewyn Wheeler passed away on 4 August 2020 and Graham Wheeler is suffering from significant dementia and no longer has the mental capacity to look after either his own affairs or the affairs of the Trust. As a result, both Graham Wheeler and Raewyn Wheeler were removed as trustees on 1 October 2020. The application to vest the trust property is necessary given neither Graham Wheeler or Raewyn Wheeler can execute any documents.

[3]                 Having considered the application and the affidavit of Steven Wheeler filed in support, it is clearly appropriate to make the orders sought. First, I am satisfied that it is appropriate to commence the proceedings by way of originating application. Secondly, given the death of Raewyn Wheeler and the condition of Graham Wheeler, it is appropriate to make an order dispensing with service.

[4]                 Having dealt with those preliminary matters, it is clear from the evidence of Steven Wheeler the substantive orders sought should be made to ensure that the Trust can continue to function in order to look after the interests of the beneficiaries including Graham Wheeler. I therefore make the following orders:

(a)granting leave pursuant to r 19.5 of the High Court Rules 2016 for these proceedings to be commenced by originating application;

(b)dispensing with service of the application;

(c)vesting the assets of the Trust, including the property at 2/24 Cherub Place, West Harbour, Auckland, being all that land comprised and described in Record of Title NA 71A/374 (North Auckland Registry) in Steven Graham Wheeler and Julie Anne Unwin as trustees of the Trust, to be held in accordance with the Deed of Trust dated 31 July 1996.

Powell J