Martelli v Vause

[2018] NZHC 82

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-00105 [2018] NZHC 82

BETWEEN

GARY STUART MARTELLI

Applicant

AND

CLIFFORD VAUSE AND JILLIAN LESLEY VAUSE

Respondents

Hearing:	On the papers
Counsel:	W A Endean for Applicant
Judgment:	9 February 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 9 February 2018 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Dawsons, Auckland

MARTELLI v VAUSE [2018] NZHC 82 [9 February 2018]

of trustees and vesting orders.   There is also an application for appointment of a litigation guardian.  By minute dated 1 February 2018, I indicated that I was prepared to grant the application for removal and appointment of trustees and vesting orders. However, I was not, at that stage, willing to appoint Toni, the defendants’ daughter, as a litigation guardian on a without notice basis.  I convened a telephone conference at which Mr Endean, solicitor for the applicants, appeared.   At that conference, I confirmed that I was prepared to grant the removal and appointment of trustees and vesting orders without notice. But I was not prepared to make an order as to litigation guardianship without the application being served on Toni’s sister, Michelle. My full reasons now follow.

Background

[2]      Clifford Vause and Jillian Lesley Vause are mentally incapable of managing their affairs.  Dr Christopher Raymond Peter Beer and Dr Jonathan McPherson attest to the fact that Mr and Mrs Vause suffer with dementia and that they are unable and incapable of understanding the issues subject to the present proceedings.

[3]      It is proposed that they be removed as trustees from the C Vause Family Trust and JL Vause Family Trust and to replace them with Gary Stuart Martelli and Gerald Alfred Clark.  Mr Martelli was appointed their attorney under enduring powers of attorney dated 27 September 1998.  Mr Clark’s relationship to Mr and Mrs Vause is not described in the material supporting the application. Mr Endean advises, however, that Mr Clark is a longstanding friend of Mr and Mrs Vause.

[4]      Late last year a decision was made to sell the home belonging to Mr and Mrs Vause at 67 Bramley Drive.  Mr Martelli exercised his power of attorney to affect a sale but is unable to complete the transfer. The date of settlement is 28 February 2018.

[5]      The evidence also shows that Mr and Mrs Vause have two children, Toni aged

47 and Michelle aged 44.  Toni became estranged from her parents about 15 years’ ago and was excluded as a beneficiary of the Trusts in 2002 by deeds made on the 10th day of May 2002.  However, in April 2017, Toni became reconciled with her parents

Martelli and Mr Clark being appointed as trustees of the Trusts.  There is, however, no mention of Michelle’s position.  Mr Endean quite properly advised me that he had spoken to Michelle about the present proceedings and had got the impression from her that she was prepared to consent to the application. However, she has not since offered her consent to the application.

Assessment

[6]      Given the clear evidence of incapacity, and Mr Martelli’s and Mr Clark’s longstanding relationship with Mr and Mrs Vause, I am satisfied that it is appropriate and expedient for the purpose of s 51 of the Trustee Act, that Mr Martelli and Mr Clark be appointed as substitutes for Mr and Mrs Vause in respect of the Trusts. It follows also that vesting orders as sought should be made.

[7]      As to the application in relation to a litigation guardian, it appears Mr Endean assumed a guardian was necessary. But that is not the case.1 Given Mr Martelli enjoys power of attorney in relation to both Mr and Mrs Vause, I am satisfied his involvement in the application is sufficient to trigger my discretion to discharge the requirement for a litigation guardian at r 4.30 of the High Court Rules.   Furthermore, given the evidence about Toni’s relationship with her parents, I am not prepared to appoint her as a litigation guardian without Michelle’s consent.   To the extent the litigation guardian order is still sought, that part of the proceedings is adjourned and the application to appoint Toni a litigation guardian is to be formally served on Michelle, together with this judgment.  It may be that that aspect becomes redundant, given the substitution orders.

Outcome

[8]      I am satisfied that the orders for substitution and vesting should be made. The balance of the proceeding is, however, adjourned.   If the application to appoint a litigation guardian is to be pursued, I make an order that Michelle be formally served

with that application together with a copy of my judgment. If the application is no

1 See High Court Rules 2016, r 4.30; McPherson v McPherson [2016] NZHC 332 at [18].

closed.