Wong v Wong

[2018] NZHC 1398

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1009

[2018] NZHC 1398

BETWEEN

YAT WONG AND JASON ASHLEY LAW

Applicants

AND

NIM CHI WONG AND YAT WONG

Respondents

Hearing:	On the papers
Counsel:	V Bruton QC for Applicants
Judgment:	13 June 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 13 June 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Ellice Tanner Hart, Hamilton

WONG v WONG [2018] NZHC 1398 [13 June 2018]

[1]                 On 4 June 2018, I granted the applications for leave to commence by way of originating applications together with the vesting order pursuant to s 52 of the Trustee Act 1956 on the following terms:

(a)Vesting the property at 4/570 Remuera Road, Remuera, Auckland having the identifier NA70C/560 in Yat Wong and Jason Ashley Law as the current trustees of the Law & Wong Family Trust; and

(b)That the costs of this application be met from the funds or assets of the Law & Wong Family Trust.

[2]My reasons now follow.

[3]                 The respondents, Nim Chi Wong and Yat Wong, are the former trustees of the Law & Wong Family Trust (The Trust) settled by deed dated 19 August 2011 (the Trust Deed). The property, subject to the application, is the home of Nim Chi Wong and the main asset of the Trust. Under the Trust Deed, Nim Chi Wong is the settlor of the Trust and holds the power of appointment and removal of trustees.

[4]                 On 27 March 2018, Dr Gary Cheung, specialist old age psychiatrist, certified Nim Chi Wong as mentally incapable due to dementia of moderate severity and that she is not wholly competent to manage her own affairs in relation to her property. Nim Chi Wong is therefore incapable of acting as a trustee due to her mental incapacity/disability.

[5]                 Following a family decision, in which it was agreed that the property should be sold to help fund the care of Nim Chi Wong, on 18 April 2018, Yat Wong entered into a sale and purchase agreement for the property, not realising that Nim Chi needed to sign the agreement. To rectify this problem, by deed dated 24 May 2018, Yat Wong exercised his power as continuing trustee by deed to appoint Jason Ashley Law a trustee in place of Nim Chi. But, due to her incapacity, Nim Chi Wong is unable to complete the transfer of the trust property to the continuing trustees, hence the present application.

[6]                 Given this background, which is confirmed in an affidavit by Yat Wong, I am satisfied that the orders sought should be granted.

[7]                 I am also satisfied that it is unnecessary to appoint a litigation guardian or to serve the beneficiaries of the Trust with the application, namely, Nim Chi Wong, Harry Roy Law, Jason Ashley Law, Lucien Nicholas Law and Victoria Penelope Tinkler. The application relates to a routine matter, involving the proper exercise of power pursuant to s 43(f) of the Trustee Act. I direct however that a copy of this judgment is served on Harry, Lucien and Victoria.