Wymer v Wymer
[2017] NZHC 1782
•31 July 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2017-419-93 [2017] NZHC 1782
UNDER the Trustee Act 1956 IN THE MATTER
of an application under section 52 of the Trustee Act 1956 to vest property in the current trustees of the RN & MH WYMER FAMILY TRUST
BETWEEN
KEVIN JAMES WYMER, RICHARD CLARK WYMER, JACQUELINE
MARIE DOROTICH AND ROSTREVOR TRUSTEES TEN LIMITED, ALL AS TRUSTEES OF THE RN & MH WYMER FAMILY TRUST
Plaintiffs
AND
KEVIN JAMES WYMER, RICHARD CLARK WYMER AND JACQUELINE MARIE DOROTICH AS EXECUTORS OF THE ESTATE OF RICHARD NESLON WYMER
First Defendants
MARIE HELEN WYMER Second Defendant
ELTAN TRUST MANAGEMENT LIMITED
Third Defendant
Hearing: On the papers Counsel:
K I Bond for Plaintiffs
Judgment:
31 July 2017
JUDGMENT OF WHATA J
WYMER v WYMER [2017] NZHC 1782 [31 July 2017]
This judgment was delivered by me on 31 July 2017 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Whitfield Braun Limited, Hamilton
[1] This is an application for orders vesting the following land in the plaintiffs:
(a) the land comprised and described in Certificate of Title WN32D/972, being Lot 2 Deposited Plan 64776, an estate in fee simple of 1,510 m2 more or less;
(b)the land comprised and described in Certificate of Title SA26D/1317, being Lot 1182 Deposited Plan South Auckland 29530, an estate in fee simple of 528 m2 more or less; and
(c) the land comprised and described in Certificate of Title SA61A/145, being Lot 3 Deposited Plan South Auckland 76754, an estate in fee simple of 1,144 m2 more or less.
Facts
[2] The plaintiffs are the trustees of RN & MH Wymer Family Trust (the Trust). The Trust was settled by Deed of Trust dated 7 October 1996. The Trust owns the three properties subject to the application (the properties).
[3] The plaintiffs (except Rostrevor Trustees Ten Ltd) are also the first defendants, as executors of the estate of Richard Nelson Wymer, who was previously a trustee of the Trust and remains registered on the title of the properties.
[4] The second defendant, Marie Helen Wymer, was previously a trustee of the Trust and remains registered on the title of the properties. The third defendant, the Eltan Trust Management Ltd, was also previously a trustee of the Trust and remains registered on the title of the properties.
[5] On 15 September 2016, Richard Nelson Wymer passed away and probate of his will was granted on 11 October 2016, appointing the first defendants as executors of his estate. Since that time, Marie Wymer has become incapable of acting as a trustee due to her being mentally incapable. This is supported by a health practitioner’s certificate of mental incapacity dated 12 December 2016.
[6] By deed dated 15 March 2017, Eltan Trust Management Ltd resigned as a trustee of the Trust and Kevin Wymer, Richard Clark Wymer and Jacqueline Dorotich (the first defendants), as executors of the estate of Richard Nelson Wymer, exercised the power of appointment granted to them under s 43 of the Trustee Act
1956 to appoint Rostrevor Trustees Ten Ltd as trustee of the Trust in substitution for the second defendant.
[7] They now wish to transfer the title of the properties to the current trustees.
Evidence
[8] All matters of fact were supported by affidavit evidence and corroborating documentary material.1
Legal frame
[9] Section 47 of the Trustee Act provides that upon appointment of a new trustee the land subject to the trust vests in the new trustees. But it does not apply to land under the Land Transfer Act 1952.
[10] Accordingly, the plaintiffs are required to apply for a vesting order under s 52 of the Trustee Act in order to give effect to the transfer of the properties. Section 52 provides the court may make an order vesting land in various circumstances, including where a trustee is under a disability, or where the court considers such an order would be expedient.2
Assessment
[11] As can be seen from the background facts, it is expedient to make a vesting order. The only real issue is whether or not any potentially interested or affected persons might object to the making of the orders. Directions as to service were
sought in relation to this and the plaintiffs duly served Eltan Trust Management Ltd
1 The applicants filed two affidavits in support with attached documentary material: the Affidavit of Kevin James Wymer in Support of Application for Vesting Orders dated 21 March 2017, and the Affidavit of Lianna Jane Cuneen dated 12 April 2017.
2 SWL Trustee Co Ltd v Marshall [2015] NZHC 132 at [27]-[34] provides a helpful summary of the approach to be taken under s 52 of the Trustee Act 1956.
with the relevant documents. The directions as to service made by Wylie J provided that the defendants had ten working days in which to file a statement of defence.3
That period has now passed. A vesting order is proper in the circumstances.
[12] In agreement with counsel for the plaintiffs, Mr Bond, judgment by default may be entered for the purposes of r 15.9 of the High Court Rules 2016.
[13] Given the foregoing, there shall be orders as sought.
3 Minute of Wylie J dated 11 April 2017.
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