Ritchie v Ritchie

[2019] NZHC 2960

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2019-441-69

[2019] NZHC 2960

UNDER

the Trustee Act 1956 and the Court’s inherent jurisdiction

IN THE MATTER

of the IJ and GE Ritchie Family Trust

BETWEEN

IAN JAMES RITCHIE AND NAPIER TRUSTEE SERVICES 104 LIMITED

Plaintiffs

AND

GLENNIS ELIZABETH RITCHIE

Defendant

On the papers
Counsel:	M J Inwood for Plaintiffs
Judgment:	13 November 2019

JUDGMENT OF THOMAS J

[1]                 The plaintiffs have applied for orders dispensing with the service of an application brought under Part 18 of the High Court Rules and s 52 of the Trustee Act 1956 in relation to the IJ and GE Ritchie Family Trust (the Trust). The trustees of the Trust are the plaintiffs, Ian James Ritchie (Mr Ritchie) and Napier Trustee Services 104 Limited, together with Glennis Elizabeth Ritchie (Mrs Ritchie).

[2]                 Mr Ritchie and Napier Trustee Services 104 Limited bring the application because Mrs Ritchie has been assessed as lacking the mental capacity to continue as a trustee of the Trust. Dr Terence de Silva attended on Mrs Ritchie on 16 September 2019 to assess her mental capacity for carrying out her role as a trustee of the Trust and concluded then that she lacks the mental capacity to act as a trustee of the Trust.

RITCHIE v RITCHIE [2019] NZHC 2960 [13 November 2019]

[3]The Trust was settled on 20 September 1998. The beneficiaries of the Trust are:

(a)Mrs Ritchie;

(b)Mr Ritchie;

(c)their children;

(d)their children’s children; and

(e)any Trust which includes for the time being, among its beneficiaries any of the above beneficiaries.

[4]The Trust’s main assets are:

(a)a house at 236 Poraiti Road, RD2, Napier, described in Record of Title Identifier HBW1/703 (the Trust property);

(b)stocks and bonds; and

(c)bank accounts and term deposits.

[5]                 The plaintiffs wish to sell the Trust property and put the proceeds into the Trust investments and/or a new Trust property.

[6]The plaintiffs are unable to sell the Trust property because:

(a)Mrs Ritchie does not have the mental capacity to sign the transfer documents for the Trust property; and

(b)Land Information New Zealand will not accept a transfer of ownership signed by Mrs Ritchie’s attorney.

[7]                 Accordingly, the plaintiff’s  statement  of  claim  seeks  orders  removing  Mrs Ritchie as a trustee, vesting the Trust property in the remaining trustees and vesting the remaining Trust assets in the remaining trustees.

[8]                 By her judgment of 14 October 2019, Gwyn J dispensed with  service  on Mrs Ritchie and exercised her discretion not to appoint a litigation guardian in respect of Mrs Ritchie.1

[9]                 The beneficiaries of the Trust have all consented to the application. In respect of any minors, consent is given on their behalf by their parents.

[10]              I am satisfied it is appropriate to grant the orders in the terms sought. I make the following orders:

(a)an order removing Glennis Elizabeth Ritchie as a trustee of the Trust on the grounds she lacks mental capacity to continue as a trustee;

(b)an order pursuant to s 52 of the Trustee Act 1956 that the property at 236 Poraiti Road, RD 2, Napier, described in Record of Title Identifier HBW1/703, presently owned by Ian James Ritchie, Glennis Elizabeth Ritchie and Napier Trustee Services 104 Limited, be vested in Ian James Ritchie and Napier Trustee Services 104 Limited;

(c)an order:

(i)pursuant to s 59 of the Trustee Act that all shares owned by or on behalf of the Trust; and

(ii)all other Trust assets, estates, interests and rights:

be vested in Ian James Ritchie and Napier Trustee Services 104 Limited as the remaining trustees; and

1      Ritchie v Ritchie [2019] NZHC 2605.

(d)an order that the plaintiffs’ costs of the proceeding be paid from the assets of the Trust.

Thomas J

Solicitors:

Carlile Dowling, Napier for Plaintiffs