Ritchie v Ritchie

[2019] NZHC 2605

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV 2019-441-000069

[2019] NZHC 2605

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

Hearing:

In Chambers

Determined on the papers

Counsel:

M J Inwood for the Plaintiffs

No appearances for the Defendant

Judgment:

14 October 2019

JUDGMENT OF GWYN J

[Service and Representation]

This judgment was delivered by me on 14 October 2019 at 1pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Carlile Dowling Lawyers, Napier

RITCHIE and NAPIER TRUSTEE SERVICES 104 LIMITED v RITCHIE [2019] NZHC 2605 [14 October 2019]

Introduction

[1]                 The matter before me is an application 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.

[3]                 Mr Ritchie holds an enduring Power of Attorney in relation to Mrs Ritchie’s property affairs pursuant to the Protection of Personal and Property Right Act 1988.

[4]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.

[5]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.

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

[7]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.

[8]Accordingly, the plaintiff’s statement of claim seeks orders:

a)   Removing Mrs Ritchie as a trustee on the grounds that she lacks the mental capacity to continue as a trustee;

b)   An order vesting the Trust property in the remaining trustees; and

c)   An order vesting the remaining Trust assets in the remaining trustees.

[9]The plaintiffs and beneficiaries of the Trust consent to the orders sought.

[10]              In the application before me the plaintiffs seek that their proceedings should be placed before the Court for resolution without being first served. They also seek an order pursuant to Rule 4.30 of the High Court Rules 2016 that the Court order that there be no litigation guardian appointed in regard to Mrs Ritchie.

Dispensing with service

[11]              As to service, the plaintiffs seek an order dispensing with personal service entirely - that is, in relation to Mrs Ritchie and her attorney and any other person. I accept that it is in the interests of justice for the application to be made without notice.

The proceeding is uncontentious. Mrs Ritchie has dementia and is unable to participate in the proceedings. All other beneficiaries consent to the substantive orders sought. There are no other persons who should be served as persons who are “interested in, or may be adversely affected by, the relief sought”.1

Litigation guardian

[12]            Rule 4.30 of the High Court Rules requires that an incapacitated person be represented by a litigation guardian unless the Court otherwise orders.

[13]              In this case the Statement of Claim does not seek any relief that is adverse to the interests of Mrs Ritchie. That tells against the need to appoint a litigation guardian who, in the normal course, would be expected to investigate that issue amongst other things and to come to a conclusion about how Mrs Ritchie should respond to the proceedings against her, taking into account her best interests.

[14]              In Docherty v Docherty, Associate Judge Bell considered, on facts similar to this case, that a litigation guardian was unnecessary.2 In Hunt v Moran, similarly, Clark J found that appointing a litigation guardian was inappropriate in the context of the particular application.3

[15]              I conclude that this is a proper case to exercise the discretion in r 4.30. There will therefore be an order dispensing with the need for a litigation guardian in respect of Mrs Ritchie.

Orders

[16]I make the following orders:

a)   Service of the Statement of Claim, Notice of Proceeding and all other documents in these proceedings on the defendant and her attorney be dispensed with.

1      High Court Rules 2016, rule 18.7(3).

2      Docherty v Docherty [2013] NZHC 1885.

3      Hunt v Moran [2018] NZHC 3108.

b)   No other person need be served with these proceedings.

c)   The defendant does not need to be represented by a litigation guardian or other representative.

d)   Evidence in these proceedings to be by way of affidavits.

e)   The proceedings are to be dealt with on the papers.

[17]              The proceeding is to be placed in the Duty Judge List for consideration of the substantive application.

Gwyn J