Hill v Hill

[2018] NZHC 280

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-000046

[2018] NZHC 280

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

DOREEN HILL, ROBERT LESLIE ANCELL, MARGARET ANN MORELL and JANETTA PATRICIA WILSON

Applicants

AND

JAMES ROY HILL

Respondent

Hearing:	On the papers
Judgment:	28 February 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 28 February 2018 at 4.00pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

Nielson Law/D M O’Neill, Hamilton

HILL v HILL [2018] NZHC 280 [28 February 2018]

[1]    This matter has come before me as a matter of some urgency. Orders are sought vesting land in the name of the applicants, and dispensing with service on the respondent.

[2]    The background is straightforward. In 1997, one of the applicants – Doreen Hill, and her husband – the respondent – James Hill, settled a trust. The trust is known as the James and Doreen Hill Family Trust.

[3]    The initial trustees were Mr Hill, Mrs Hill and their accountant – Robert Ancell.

[4]    The final beneficiaries of the trust are the children of Mr and Mrs Hill. There are also discretionary beneficiaries, including members of the wider family.

[5]    In 2008, Mr Hill suffered a stroke. He is in a rest home – as he requires 24- hour attention. Mrs Hill is incapable of providing that attention. Mr Hill also suffers from dementia and is unable to take care of himself. A registered medical practitioner, a Dr Campbell, has filed an affidavit recording, inter alia, that Mr Hill cannot understand speech, that he is unable to talk or communicate in any way whatsoever, and that he is unable to understand any matter pertaining to his health or wellbeing. He has also deposed that Mr Hill is totally dependent on others in every aspect of his life.

[6]The trustees own a residential property, situated in Gardiner Place, Hamilton.

[7]    Mrs Hill wishes to sell that property. She, and her and Mr Hill’s daughters – Margaret Morell and Janetta Wilson – have entered into an agreement for sale and purchase. Settlement is due tomorrow. The daughters entered into the agreement for sale and purchase, because they hold an enduring power of attorney from their father. They mistakenly thought that the power of attorney permitted them to do so.

[8]    A deed has been entered into removing Mr Hill as a trustee pursuant to s 43(1) of the Trustee Act 1956, and appointing Mrs Morell and Mrs Wilson as new trustees in his stead. The deed records that the remaining trustees – Mrs Hill and Mr Ancell –

vest the trust’s assets in themselves as remaining trustees, and in the new trustees, upon the trusts contained in the deed of trust.

[9]    Orders are now sought vesting the trust property in the name of the remaining and new trustees, and dispensing with service on Mr Hill.

[10]   I am satisfied that serving Mr Hill would be pointless, given Dr Campbell’s assessment of his position. Mr Hill would not understand what was being served on him. He could not communicate anything in relation to the documents. I am satisfied that service on Mr Hill should be dispensed with, pursuant to r 6.8 of the High Court Rules.1

[11]   I am also satisfied that Mr Hill was properly removed from the trust, and that Mr and Mrs Hill’s daughters were properly appointed as new trustees, pursuant to s 43 of the Trustee Act. Pursuant to the deed of trust, the power of removal of trustees and the power of appointment of new trustees, is vested in Mr and Mrs Hill, but Mr Hill is incapable of so acting. Mrs Hill is nominated for the purpose by the trust deed, and pursuant to s 43(1), she is entitled to appoint new trustees.

[12]   Given that the removal of Mr Hill as a trustee of the trust, and the appointment of the new trustees is in order, I accept that it is appropriate to make an order vesting the property in the name of the remaining trustees and the new trustees, to enable them to effect the sale.

[13]   I make an order in terms of the application, and approve the draft order prepared by counsel.

Wylie J

1      And see, McPherson v McPherson [2016] NZHC 332.