Daniels v Daniels

[2015] NZHC 1989

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000083 [2015] NZHC 1989

IN THE MATTER OF

an application for a vesting order pursuant

to s 52 of the Trustee Act 1956

BETWEEN

BEVERLEY ANN DANIELS AND ROY DAVID DANIELS AND ROSS & DOWLING TRUSTEES (2006) LIMITED AS TRUSTEES OF THE MERV AND BETTY DANIELS FAMILY TRUST Plaintiffs

AND

BETTY AMELIA DANIELS Defendant

Counsel:	N M Laws for the Plaintiffs
Judgment:	21 August 2015
(Determined on the papers)

JUDGMENT OF ASSOCIATE JUDGE OSBORNE

as to service and vesting orders

Introduction

[1]      The defendant,  Betty Daniels,  along with  her  husband,  George (“Merv”) Daniels, was a trustee of the Merv and Betty Daniels Family Trust (the Trust) upon its settlement by deed of trust (the Trust deed) on 1 August 1998.

[2]      In July 2014, Merv Daniels passed away. By deed dated 17 October 2014, the defendant’s children, Beverley Daniels and Roy Daniels, were appointed as new trustees in place of their father. In December 2014, Betty Daniels suffered a stroke

which has left her permanently mentally incapacitated.

DANIELS v DANIELS [2015] NZHC 1989 [21 August 2015]

[3]      Pursuant  to  s  43(1) Trustee  Act  1956,  Beverley  and  Roy  Daniels  (the plaintiffs), as continuing trustees of the Trust, removed Betty Daniels as an incapable trustee  and  replaced  her  with  the  trustee  company  of  their  solicitors,  Ross  & Dowling Trustees (2006) Limited. This was effected by deed dated 8 July 2015, on the basis that Betty Daniels’ medical condition rendered her unfit to act as a trustee.

[4]      The Trust owns a property at Marlow Street, Dunedin (the Trust property). Currently unoccupied, the Trust property is the flat in which Betty Daniels and Merv Daniels resided before Merv’s death and Betty’s admission into residential care.  The title to the Trust property is at present in the names of the plaintiffs and Betty Daniels.

The orders sought

[5]      The  plaintiffs  seek  orders  under  s 52(1)(a)  Trustee Act  to  vest  the Trust property in the plaintiffs, regularising the position so that all current trustees are shown as the registered proprietors. This will enable the trustees to sell the Trust property to fund Betty Daniels’ residential care. Absent a Court order, the District Land Registrar will not accept the use of the Deed of Removal and Appointment of New Trustees to facilitate the intended transfer.

[6]      The  plaintiffs  also  seek  orders  as  to  representation,  service,  and  costs, namely, that:

(a)      service on the defendant of this application and all other documents filed in the proceeding be dispensed with;

(b)the   defendant   does   not   require   a   litigation   guardian   as   her representative in this proceeding;

(c)      this application and the relief sought by the statement of claim be dealt with on the basis of the plaintiffs’ evidence in this application, being the affidavits of Roy Daniels, Beverley Daniels and Dr John Wood, and on the papers before the Court; and

(d)the costs of this application be met from the funds of the Trust on a solicitor-client basis.

The application to dispense with service

[7]      An order to dispense with service may be made under r 6.8(c) High Court Rules. That provision applies to circumstances in which the document has already come to the knowledge of the person to be served or it cannot be served.

[8]      Having regard to the affidavit evidence of Beverley and Roy Daniels and Dr Wood, I consider that Mrs Daniels’ condition is such that she would not be able to rationally understand the nature or purpose of these proceedings or to meaningfully participate in the decision-making of trustees. Accordingly, I am satisfied that this is an appropriate case for service to be dispensed with, as it would serve “no useful

purpose.”1 In reliance upon the inherent jurisdiction of the Court to regulate its own

process and proceedings, an order will be made dispensing with service.2

[9]      I accept that there are no other persons interested in the outcome. Service of the proceedings is not required to be made on any other person.

Representation

[10]     I am further satisfied that no directions need to be made as to representation of  the  defendant.3   Dr  Wood’s  affidavit  clearly  indicates  that,  were  a  solicitor appointed to represent Betty Daniels, she would be unlikely to understand either the nature of that advice or the purpose of these proceedings.

Vesting orders

[11]     Given these findings, a hearing would be of no utility.  I am in a position to deal with the application on the papers. I am also satisfied that it is appropriate that

1      Docherty v Docherty [2013] NZHC 1885 at [33]; cited with approval in Grazier v Grazier

[2014] NZHC 3058 at [14].

2      See IH Jacob “The Inherent Jurisdiction of the Court” (1970) Current Legal Problems 23 at 32

— 40.

3      High Court Rules, r 4.30.

this application and the relief sought be dealt with on the basis of the affidavits in support and on the papers before the Court.

[12]     Under s 52(1)(a) Trustee Act, the Court may vest land in trustees where they have been validly appointed as such. Given the need to recognise the appointment of the current trustees and to ensure the trustees can deal with the Trust property in accordance with the Trust deed, the vesting orders sought are appropriate. Such orders will be made.

Costs

[13]     In accordance with the order sought, all costs in relation to the application shall be paid out of the Trust's funds.

Orders

[14]     I direct:

a.   Service of this proceeding on Betty Daniels is dispensed with.

b.Service of the proceedings is not required to be made on any other person.

c.   In accordance with r 4.30(1) High Court Rules, Betty Daniels does not require a litigation guardian for this proceeding.

d.The property at 10A Marlow Street, Dunedin – Part Lot 1-2 Block XXII   Deposited   Plan   705,   contained   in   Certificate   of   Title OT7B/1048, is vested in Beverley Ann Daniels, Roy David Daniels and Ross & Dowling Trustees (2006) Limited.

e.   All costs in relation to the application (on a solicitor/client basis) shall be paid out of the Trust's funds.

Associate Judge Osborne

Solicitors:

Ross Dowling Marquet Griffin, Dunedin