YHPJ Trustees (2009) Limited v Holwell

[2019] NZHC 265

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2018-488-139

[2019] NZHC 265

UNDER

Part 19 of the High Court Rules and the Trustee Act 1956

IN THE MATTER

of an application for a vesting order in respect of land

BETWEEN

YHPJ TRUSTEES (2009) LIMITED, ASHLEY JAMES HOLWELL and EMMA

KARLI HOLWELL, as trustees of the GLANVILLE TRUST

Applicants

AND

COLIN PERCY HOLWELL

Respondent

On the papers
Appearances:	PJ Magee for Applicants
Judgment:	26 February 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 26 February 2019 at 3.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

YHPJ TRUSTEES (2009) LIMITED & ORS v HOLWELL (GLANVILL TRUST) [2019] NZHC 265

[26 February 2019]

[1]    YHPJ Trustees (2009) Limited and the respondent, Colin Percy Holwell (“Colin”), are the registered proprietors of properties, being the land contained in CFR NA15D/1396, NA15D/1397 and a 2546/10000 share in CIR 298268 (“the Land”). The title to the Land is held by the registered proprietors in the capacity of trustees of the Glanville Trust (“the Trust”), established by deed dated 1 November 1996.

[2]    Colin is aged 62. The reports of a geriatrician, Dr Christopher Hutchinson, dated 12 February 2018 and 6 July 2018, and a physician, Dr Carolyn Providence dated 20 April 2018, confirm that Colin suffers from frontotemporal dementia and lacks the mental capacity to manage his affairs and the affairs of the Trust.

[3]    By deed dated 16 July 2018, Colin was removed as a trustee of the Trust pursuant to the s 43(1) of the Trustee Act 1956 and replaced by his only son, Ashley James Holwell, and his only daughter, Emma Karli Holwell, as trustees.

[4]    The applicants (who are the current trustees of the Trust) bring this proceeding seeking an order under the Trustee Act 1956 vesting the Land in the current trustees on the grounds that it is expedient to do so. The order is required because Land Information New Zealand will not recognise their ownership of the Land without it.

[5]    The applicants seek leave to bring this proceeding as an Originating Application under Part 19 of the High Court Rules 2016, and to have this application determined on the papers.

[6]I am satisfied on the affidavit evidence filed that:

(a)Colin no longer has the capacity to fulfil his duties as registered proprietor and to transfer the title in the Land to the current trustees.

(b)There are no interested parties on whom service of the application is necessary or appropriate.

(c)Because the proceeding does not involve any disputed questions of fact and there is no opposing party, it is not necessary in the interests of

justice for there to be a particularised pleading or to follow the usual interlocutory steps involved in a civil proceeding.

(d)The vesting order sought under s 52 of the Trustee Act should appropriately be made.

[7]Accordingly, I order:

(a)The proceeding may be commenced by Originating Application under Part 19 of the High Court Rules 2016 and service of the proceeding on any person shall be dispensed with.

(b)Under s 52(1)(h) of the Trustee Act 1956, the Land contained in:

(i)CFR NA15D/1396;

(ii)CFR NA15D/1397; and

(iii)a 2546/10000 share in CIR 298268

shall be vested in YHPJ Trustees (2009) Limited, Ashley James Holwell and Emma Karli Holwell.

...................................................

Toogood J