Daniels v Daniels

[2018] NZHC 1578

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000394

[2018] NZHC 1578

UNDER

the Trustee Act 1956

IN THE MATTER

of an Application for Vesting Order

BETWEEN

ALMA LINDSAY DANIELS

Applicant

AND

WILLIAM HENRY DANIELS

Respondent

Hearing:	28 June 2018 (Determined on the papers)
Appearances:	P C Maciaszek for the Applicant
Judgment:	28 June 2018

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]    The plaintiff, Mrs A L Daniels, is a trustee of the Daniels Family Trust which owns a property in Christchurch. The defendant, Mr W H Daniels, is Mrs Daniels’ husband. They were the original settlors of the Trust and until May 2018, were the trustees.

[2]    Unhappily, Mr Daniels has developed a serious debilitating illness. Medical evidence produced to the Court shows that he is unable to carry out his duties as a trustee of the Trust. In May 2018, Mrs Daniels appointed her daughter, Mrs Dowie, as a second trustee, and removed Mr Daniels as a trustee, pursuant to a power in the Trust deed. She now seeks a vesting order in relation to the property owned by the Trust, into the joint names of herself and Mrs Jillian Dowie.

DANIELS v DANIELS [2018] NZHC 1578 [28 June 2018]

[3]    Accompanying the substantive proceeding as an interlocutory application without notice for directions as to service and representation, Mrs Dowie is the only child of Mr and Mrs Daniels and she and her two children are the sole discretionary beneficiaries in the Trust. All have been served with the proceeding and all consent to the Court making the orders sought in the substantive proceeding. I am satisfied that no order is required for further service in the circumstances of this case.

[4]    I am further satisfied that it is appropriate for the substantive orders sought by Mrs Daniels to be made.   The evidence satisfies the Court that the condition of     Mr Daniels, now, is such that not only is he unable to look after his own affairs and those of the Trust, but also, he will not recover to a point where he might so do. The step of removing him as a trustee was an appropriate one to be made and a vesting order consequent on that step is entirely appropriate. I note a pressing need for this to be attended to as Mrs Daniels has moved from the Trust’s property into a retirement apartment and the trustees must now take immediate steps to sell the Trust property and take title to the new property accordingly.

[5]As a result, therefore:

(a)I direct that no further service of this application is required;

(b)I make a vesting order under s 52 of the Trustee Act 1956 vesting the property at 34B Northfield Road, Casebrook, Christchurch, Identifier 523361 (Canterbury Land Registration District) in the names of  Alma Lindsay Daniels and Jillian Dowie, the current trustees of the Daniels Family Trust.

[6]No issue arises in relation to costs.

J G Matthews Associate Judge

Solicitors:

Maciaszek Brown Law, Christchurch