Yeates v The Queen

[2014] NZHC 1124

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2014-416-20 [2014] NZHC 1154

BETWEEN

DION HAMILTON KOHN and JULIAN

WILFRED KOHN Plaintiffs

AND

JENNIFER MARIAN KOHN Defendant

Hearing:	(on the papers)
Counsel:	E R Revington for Plaintiffs No appearance by or on behalf of Defendant
Judgment:	28 May 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 28 May 2014 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Woodward Chrisp, Gisborne

KOHN v KOHN [2014] NZHC 1154 [28 May 2014]

[1]      Mr Dion Kohn and Mr Julian Kohn are trustees of the Dion and Jennifer Kohn Family Trust (the Trust).   The Trust was established on 18 May 1999.   Mr Dion Kohn’s wife, Jennifer, is also a trustee.

[2]      There is evidence that Mrs Jennifer Kohn suffers from dementia and that this condition has existed for some time.  That evidence is in the form of a report from a consultant  psycho-geriatrician  attached  to  Tairawhiti  District  Health,  dated  24

February 2014.

[3]      On  30  March  2005,  Mrs  Jennifer  Kohn  executed  an  enduring  power  of attorney in favour of her husband, in relation to her property.  This was done for the purpose of Part IX of the Protection of Personal and Property Rights Act 1988.  The power of attorney granted expressly stated that the authority “shall not be revoked if I become mentally incapable”.

[4]      The trustees of the Trust own a property at 24 Heatherlea Street in Gisborne.

The  present  proceeding  has  been  issued  to  obtain  a  vesting  order1

so  that  the

property  may  be  transferred  into  the  names  of  Messrs  Dion  and  Julian  Kohn, together with Ms Sarah Deighton and Ms Joanna Ebbett.  Ms Deighton and Ms

Ebbett are Mr and Mrs Kohn’s daughters.

[5]      Mrs Jennifer Kohn was removed as a trustee and replaced by Ms Deighton and  Ms  Ebbett,  through  the  remaining  trustees  exercising  powers  conferred  by s 43(1) of the Trustee Act 1956.   That was done because Mrs Jennifer Kohn was

unfit to act as a trustee, by virtue of her medical condition.

[6]      The purpose of the vesting order is to regularise the position so that all present trustees are shown as the registered proprietors.  The District Land Registrar will not accept the use of the power of attorney and the existing Deed of Removal and Appointment of New Trustees to facilitate that transfer.

[7]      In form, the application before me is for directions as to service; to dispense with the need to serve Mrs Jennifer Kohn.  I am satisfied that such an order should

1      Trustee Act 1956, s 52(1)(h).

be made.   Once made, I can see no basis on which a substantive order should be refused.  For that reason, I propose to deal with the substantive proceeding now.

[8]      I  am  satisfied  that  an  order  should  be  made  vesting  the  property  at  24

Heatherlea Street, Gisborne (Lot 1 DP 7071 GS4D/1204 Gisborne Registry) in the names of Dion Hamilton Kohn, Julian Wilfred Kohn, Sarah Louise Deighton and Joanna Frances Ebbett.  Although this will not be shown on the register, the vesting order is made on the basis that they are to hold the property as trustees for the Trust.

[9]      For those reasons, I make an order dispensing with service on Mrs Jennifer

Kohn and make a vesting order in the terms set out in para [8] above.

[10]     All costs in relation to the application shall be paid out of the Trust’s funds.

P R Heath J

Delivered at 4.00pm on 28 May 2014