Green

[2019] NZHC 1634

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2019-43-000029

[2019] NZHC 1634

IN THE MATTER OF

the Trustee Act 1956

AND

IN THE MATTER OF

an application for a Vesting Order pursuant to section 52(1)(a) of the Trustee Act 1956

BY

MICHAEL CHARLES BENTLEY GREEN AND DM HASTIE NOMINEES LIMITED

Applicants

Hearing:	On the papers
Counsel:	T Wano for Applicants
Judgment:	12 July 2019

JUDGMENT OF COOKE J

[1]By application dated 2 July 2019 the applicants apply for orders:

(a)For leave to commence these applications by originating application under r 19.5 of the High Court Rules 2016.

(b)That pursuant to section 52 of the Trustee Act 1956 three properties comprised in certificate of titles TN143/132, TNB1/788 AND SA19B/1299 (collectively, “the Properties”) currently in the names of Donald Andrew Hastie and DM Hastie Nominees Limited be hereby vested in Michael Charles Bentley Green and DM Hastie Nominees Limited as trustees of the D & M Hastie Family Trust (No. 1) and the

GREEN AND DM HASTIE NOMINEES LTD [2019] NZHC 1634 (12 July 2019)

D & M Hastie Family Trust (No. 2) to have all effect as described in  s 57 of the Trustee Act 1956.

[2]        The applications are supported by  an  affidavit  of  Deborah  Hastie  sworn 19 June 2019, and a memorandum of counsel dated 2 July 2019.

[3]        It is routine for applications of this kind to be commenced by way of originating application, and I accordingly grant that leave.

The relevant circumstances

[4]Section 52(1)(a) of the Trustee Act 1956 provides:

52     Vesting orders of land

(1)Subject to the provisions of subsections (2) and (3), in any of the following cases, namely—

(a)      where the court appoints or has appointed a trustee of any land or interest therein, or where a trustee of any land or interest therein has been appointed out of court under any statutory or express power:

…

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

[5]        This power can be utilised when the trustees of a trust have changed as a consequence of the exercise of a power of appointment under a trust deed, and the former trustee is no longer available to execute transfers. For example it has been used in the case of an incapacitated trustee when the holder of an enduring power of attorney is not able to execute transfers.1 It has also been exercised when powers of an appointment under the trust deed do not address the situation.2 Ultimately the issue for the Court is whether ordering the changes to the certificate of title is appropriate in the circumstances of the case given technical difficulties faced by the parties that cannot be remedied by the parties themselves.

1      Godfrey v McCormick [2017] NZHC 420; Locker v Browning [2018] NZHC 1127.

2      Public Trust v Daken [2017] NZHC 1285.

[6]        In the present case the memorandum of counsel and the affidavit of Ms Hastie explain that the original trustees who were the registered proprietors were removed as trustees, and that further trustees were appointed (by deeds dated 15 April 2014, 13 May 2014 and 24 May 2019).   The original trustees were Mrs Meryn Hastie and   Mr Donald Andrew Hastie and Ngaio Farms Ltd. In the case of Mrs Hastie she was removed as a trustee on 15 April 2014 following a diagnosis of alzheimers and dementia. In the case of Mr Hastie he was removed for similar reasons on 24 May 2019. A copy of a health practitioners certificate of mental incapacity dated 20 March 2019 from Dr Mary Gillooly has been provided. This evidences that Mr Hastie was mentally incapable and wholly lacked capacity to make sensible decisions about his personal care or his property at the time he was replaced. Ngaio Farms Ltd was replaced as trustee in 2014 by DM Hastie Nominees Ltd.

[7]        I am satisfied that the present applicants are the present trustees of the trust that owns the land, and the former trustees who are the registered proprietors should be removed and replaced by the present trustees who have been duly appointed by deeds of trust. Accordingly I grant the application.

Cooke J

Solicitors:
Govett Quillian, New Plymouth for Applicants