Parker v Parker

[2014] NZHC 2248

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV 2014-419-000356 [2014] NZHC 2248

IN THE MATTER

of an Application for a Vesting Order

under the Trustee Act 1956

BETWEEN

MARY LYNETTE PARKER, KEVIN JOHN BURGESS and BRIAN ANDREW BARTELS as trustees of the Parker

Family Trust

Plaintiffs

AND

LEONARD WILLIAM PARKER Defendant

On the papers
Judgment:	17 September 2014

JUDGMENT OF ANDREWS J [Application for vesting order and ancillary orders]

This judgment is delivered by me on 17 September 2014 at 11 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

PARKER, BURGESS and BARTELS as trustees of the Parker Family Trust v PARKER [2014] NZHC 2248 [17 September 2014]

[1]      The plaintiffs have filed a statement of claim in which they seek an order pursuant to s 52(1)(h) of the Trustee Act 1956 vesting the property at Parker Access Road,   Waitetuna,   Raglan   (SA15C/747,   SA64A/954   and   SA64A/955)   (“the property”) in them. They also seek orders as to service and representation.

[2]      Having read the statement of claim, without notice application for directions, affidavit of Mary Lynette Parker, and the memorandum of Mr B T Cullen, counsel for the plaintiffs, I am satisfied that the orders sought should be made.   My brief reasons are set out below.

[3]      The plaintiffs are the current trustees of the Parker Family Trust, created by a deed dated 11 October 2000.  The original trustees were Mrs Parker, Mr Bartels, and Mr Leonard William Parker (Mrs Parker’s husband).  Mr Parker has been unwell for some years.  A certificate of mental capacity dated 28 September 2009 recorded that he suffers from advanced dementia of the Alzheimers type.   A medical certificate dated 28 August 2014 records that Mr Parker’s condition has not improved, and he remains wholly lacking in capacity to make or communicate decisions.

[4]      Mr Parker had given an enduring power of attorney to Mrs Parker and their daughter on 10 October 2007.  On 26 February 2014 Mr Parker (by his attorneys) retired  as  trustee,  and  was  replaced  by Mr K  J  Burgess  (Mr and  Mrs  Parker’s nephew) by a Deed of Retirement (Removal) of Trustee and Appointment of New Trustee, pursuant to s 43 of the Trustee Act.

[5]      The original  trustees  are the  registered  proprietors  of the  property.    The current trustees wish to sell part of the property but that cannot occur without the Court granting a vesting order pursuant to s 52(1)(h) of the Trustee Act.  The current trustees have, accordingly, applied for a vesting order to transfer the interest in the property to them.

[6]      The current trustees also seek an order dispensing with service on Mr Parker, on the grounds of his medical condition.  They also seek a direction that no order is required as to representation.

[7]      I am satisfied that the purpose of seeking the vesting order is so that the current trustees are properly shown as the registered proprietors of the property, and that a vesting order is necessary to achieve that purpose.  I am also satisfied that it is not necessary to make any orders as to representation or service.

[8]      Accordingly, I make orders as to representation and service in accordance with the draft “Order for Representation and Service” annexed as Schedule E to counsel’s memorandum, and I make a vesting order in accordance with the draft order annexed as Schedule F to counsel’s memorandum.

[9]      I direct that all costs in relation to the application are to be paid from the funds of the Parker Family Trust.

Andrews  J