Williams, re

[2015] NZHC 2206

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2015-442-43 [2015] NZHC 2206

UNDER

Part 19 of the High Court Rules and

section 52 of the Trustee Act 1956

IN THE MATTER OF

Removal of an existing trustee and appointment of a new trustee in the Williams Family Trust

BETWEEN

JOHN WILLIAMS AND SHEILA MARY WILLIAMS

Applicants

On the papers
Counsel:	G W Allan for the Applicants
Judgment:	11 September 2015

JUDGMENT OF MALLON J

Introduction

[1]      The  applicants,  Mr  John  Williams  and  Mrs  Sheila  Williams,  are  two continuing trustees of the Williams Family Trust (the Trust).  The third trustee, Mr Dennis Creed, was removed as trustee due to ill health and a lack of capacity.  Mr and Mrs Williams appointed P&M Trustee No. 2 Limited (P&M) in Mr Creed’s place.

[2]      Mr and Mrs Williams seek:

(a)       an  order  under  r  19.5  of  the  High  Court  Rules  to  permit  the proceeding to be commenced by originating application;

(b)an order under s 52(3) of the Trustee Act 1956 (the Act) vesting specified land in Mr Williams, Mrs Williams, and P&M; and

In re Williams [2015] NZHC 2206 [11 September 2015]

(c)       an order that service of the proceeding on Mr Creed be dispensed with.

Background

[3]      The Trust was formed pursuant to a deed of trust (the Deed) dated 1 April

1996.   It appointed Mr Williams, Mrs Williams and Mr Creed as trustees, and Mr Creed was also the settlor of the trust.   The beneficiaries are Mr Williams, Mrs Williams and their two adult daughters.  Clause 15 of the Deed provides Mr and Mrs Williams with the power to jointly appoint new trustees or remove existing trustees in their lifetime.

[4]      The present application is supported by an affidavit which attaches a letter from Dr Robert Riley, dated 18 August 2015, providing details of Mr Creed’s health. Dr Riley states that Mr Creed suffers from “Alzheimer dementia”, that he resides at a care facility, and that he is unable to continue as a legal trustee in any business or company.

[5]      Pursuant to the powers in cl 15, Mr Williams and Mrs Williams executed a “Deed of Removal and Appointment of New Trustee” on 12 August 2015.  That deed removed Mr Creed as a trustee and appointed P&M in his place.  An affidavit of Mrs Williams confirms that their two daughters have no issue with the change of trustee.

[6]      The Trust is the registered proprietor of a property in Tuna Bay, Marlborough Sounds.  The title to the property lists the proprietors as Mr Williams, Mrs Williams, and Mr Creed.   The family received an offer for the property in the last week of August.  They wish to settle an agreement for the sale and purchase of the property on 1 October 2015.  A vesting order and transfer of title to the current trustees is therefore sought.

The form of the application

[7]      Part  18  of  the  High  Court  Rules  applies  to  proceedings  where  relief  is claimed under the Act.  The present application is made pursuant to r 19.5.  That rule

allows the Court to permit any proceeding to be commenced by originating application where it is in the interests of justice to do so.  I am satisfied that it is in the interests of justice, given that the application is essentially procedural in nature, Mr Creed is under a disability, and there are no other affected parties.

Vesting order

[8]      The application seeks a vesting order under s 52 of the Act. That section provides as follows:

52       Vesting orders of land

(1)       Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

…

(b)       where  a  trustee  entitled  to  or  possessed  of  any  land  or interest therein, whether by way of mortgage or otherwise, or  entitled  to  a  contingent  right  therein,  either  solely  or jointly with any other person—

(i)       is under disability;

…

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

(2)       Where  any such  order is consequential on the appointment of a trustee, the land or interest therein shall be vested for such estate as the court may direct in the persons who on the appointment are the trustees.

(3)       Where any such order relates to a trustee entitled or formerly entitled jointly with another person, and that trustee is under disability or out of the jurisdiction of the court or cannot be found, or (being a corporation) has ceased to carry on business or is in liquidation or has been dissolved, the land, interest, or right shall be vested in the other person who remains entitled, either alone or with any other person that the court may appoint.

[9]      I am satisfied that it is appropriate to make the vesting order sought by the applicants.  The application is properly supported by the evidence provided to the Court.  The grounds for the order are made out.

Orders

[10]     Accordingly I make the following orders:

(a)      Leave  is   granted  to   commence  the  proceeding  by  originating application.

(b)      Service of the proceeding on Mr Creed is dispensed with.

(c)      Title to the land at Tuna Bay, Marlborough Sounds, certificate of title MB1A/497, is vested in the names of John Williams, Sheila Mary Williams and P&M Trustee No 2 Limited.

Mallon J