Wicks v McNicholl

[2019] NZHC 2660

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2056

[2019] NZHC 2660

UNDER

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

IN THE MATTER OF

Of an application for an order vesting land in the continuing trustee and new trustees of the Thomas McNicholl Family Trust (“the Trust”) under s 52(1)(a) of the Trustee Act 1956

BETWEEN

KEITH WICKS, PHILIP MCNICHOLL

AND LINDA MARIE GILPIN as trustees of the Thomas McNicholl Family Trust Applicants

AND

PHILIP MCNICHOLL, LINDA MARIE GILPIN AND THOMAS MCNICHOLL

As joint registered proprietors of 180 Upper Harbour Drive, Greenhithe.

Respondent

Hearing:	16 October 2019
Appearances:	H L Thompson for the Applicants
Judgment:	18 October 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 18 October 2019 at 4 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:       McMahon Butterworth Thompson, Auckland

WICKS v MCNICHOLL (Vesting Order) [2019] NZHC 2660 [18 October 2019]

[1]                 The applicants are the trustees of the Thomas McNicholl Family Trust (“the Trust”) and seek a vesting order under s 52 of the Trustee Act 1956.

[2]                 The application is necessary because property owned by the Trust, an undivided one-half share of the fee simple estate, as tenants in common, in 180 Upper Harbour Drive, Greenhithe (being Lot 3 Deposited Plan 426672 in Certificate of Title 505020) (“the property”) includes  as  one  of  the  owners  Thomas  McNicholl  (“Mr McNicholl”) a former trustee of the Trust.

[3]                 Unfortunately, Mr McNicholl no longer has the mental capacity to look after either his own affairs or the affairs of the Trust and this led to his removal as a trustee on 29 July 2019. Despite being removed as a trustee of the Trust, Mr McNicholl remains as one of the registered proprietor’s of the property in his capacity as a trustee of the Trust along with two other current trustees, Keith Wicks and Linda Marie Gilpin. An order is accordingly necessary to ensure that the registered owners of the property reflect the current trustees of the Trust, and as a result the present application is required, with Mr McNicholl proposed to be replaced by Philip McNicholl, the sole current trustee not already on the title.

[4]                 It is noted that the proceedings were served on Mr  McNicholl’s  wife Cynthia McNicholl. No steps have been taken by Mrs McNicholl and the present application does not in any event affect her interest.

[5]                 In all of the circumstances it is quite clear that it is appropriate to make the orders sought. I therefore make the following orders:

(a)leave is given to commence these proceedings by way of originating application;

(b)that the property at 180 Upper Harbour Drive, Greenhithe (being Lot 3 Deposited Plan 426672 in Certificate of Title 505020) shall vest with the trustees of the Thomas McNicholl Family Trust, being Keith Wicks, Linda Marie Gilpin and Philip McNicholl and in particular

Thomas McNicholl is to be removed from the title and replaced by Philip McNicholl.

Powell J