Wright v Stockman

[2016] NZHC 901

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-241 [2016] NZHC 901

UNDER THE

Trustee Act 1956 and Part 19 of the High

Court Rules

IN THE MATTER OF

the Stockman Family Trust

BETWEEN

DENYS JOHN WRIGHT, SUSAN MARY STOCKMAN, PETER CONWAY STOCKMAN AND MARK JOHN STOCKMAN

Applicants

AND

NOLA MARY STOCKMAN Respondent

Hearing:	On the papers
Counsel:	S A Barker and B M McKinnon for Applicants
Judgment:	5 May 2016

JUDGMENT OF WILLIAMS J

[1]      The applicants are trustees or intended trustees of the Stockman Family Trust which  owns  a  property  in  Wellington.    The  original  trustees  were  John  David Hosking Stockman, Nola Mary Stockman and, independent trustee, Johanna Annaliese McClure.

[2]      John and Nola are the parents of Susan, Peter, Mark and Kathryn.  For ease of reference, I will call them Mr and Mrs Stockman.   Susan, Peter and Mark are the applicants.  Mr and Mrs Stockman lived at the trust property until through age and ill-health, they moved respectively to respite and rest home care.  Mr Stockman is 84 but  retains  capacity.    Mrs Stockman  is  87.    She  recently  had  a  stroke  and  is incapacitated.    Her  condition,  according  to  medical  opinion,  is  permanent  and

deteriorating.

WRIGHT & ORS v STOCKMAN [2016] NZHC 901 [5 May 2016]

[3]      Mr and Mrs Stockman appointed Denys Wright as independent trustee on

29 June 2004 pursuant to their power to appoint trustees under cl 7.1 of the trust deed.  Their intention was to provide for the retirement of Ms McClure at the same time, but this could not be lawfully effected because there was no specific retirement clause in the deed and the retirement deed was not signed by her.

[4]      The  children  now  wish  to  refresh  the  trust  in  light  of  the  changed circumstances of their parents and to correct title to the land as the title record no longer reflects the true position because of trustee retirements and appointments. The children are the primary beneficiaries of the trust.  Other defined discretionary beneficiaries are Mr and Mrs Stockman and, broadly speaking, the children, spouses and remote issue of the primary beneficiaries.  Kathryn is not included as a trustee although she is a sister, because she has an intellectual disability but her general practitioner has assessed her as being able to understand court documents if they are served on her by someone she trusts such as one of her siblings.

[5]      All of these matters are set out in detail in the supporting affidavits of Peter and Susan, and in the memorandum of counsel filed with the application.

[6]      Various procedural orders are sought in the first instance:

(a)      Allowing the three Stockman siblings to commence proceedings by way of originating application;

(b)      Providing for service of the proceeding on Kathryn who is in IHC

care and on their father Mr Stockman who is in respite care;

(c)      Dispensing with service on their mother, Mrs Stockman and all other potential  beneficiaries  of  the  trust  (being  grandchildren  or  more remote issue);

(d)      Dispensing with representation for Mrs Stockman.

[7]      The substantive order sought is to vest the trust property at 4 Tweed Road, Papakowhai, Wellington, in the three named siblings as current trustees of the Stockman Family Trust.

[8]      Affidavits of service sworn by Peter on 28 April 2016 and by Susan sworn on

29 April 2016, depose that Kathryn and Mr Stockman were served by them with the application.

[9]      I am satisfied that the procedural orders should be made in the circumstances of this case – most particularly in the circumstances of Mrs Stockman and Kathryn. And on the basis that those affected by such orders and who have capacity to consent to them either have consented or at least do not object.

[10]     I am also satisfied that it is appropriate for vesting orders be made pursuant to s 52 of the Trustee Act as the computer freehold register for the property is now out of date and correction of the title is not possible given Mrs Stockman’s mental incapacity.  In addition, all rights of the beneficiaries of the trust are unaffected as this is a change in governance effectively, rather than beneficial entitlement.

[11]      I make all orders as sought accordingly.

Williams J

Solicitors:

Buddle Findlay, Barristers and Solicitors, Wellington