Scrivener v Burt

[2020] NZHC 27

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2019-443-55

[2020] NZHC 27

IN THE MATTER

of the Trustee Act 1956

BETWEEN

ROSS DAVID SCRIVENER AS Trustee and Executor of the Estate of the late PATRICK PAUL BURT

Applicant

AND

RYAN PAUL BURT

Respondent

On the Papers
Counsel:	L P Manning for Applicant
Judgment:	27 January 2020

JUDGMENT OF ELLIS J

[1]    Mr Ross Scrivener is one of the two named Trustees and Executors of the estate of Patrick Paul Burt (Patrick), who died in March 2004. Patrick’s only surviving child, Mr Ryan Paul Burt (Ryan) is the other Trustee and Executor. Probate was granted in the New Plymouth High Court on 5 April 2004.

[2]Clauses 7 and 8 of the Patrick’s will state:

7.  LIFE INTEREST IN PRINCIPAL RESIDENCE:

Upon and subject to the provisions set out herein my wife ETHEL MARGARET BURT provided she survives me by seven (7) days may for her life or for as long as she desires have the free use, occupation, income and enjoyment of my interest in whatever property constitutes my principal place of residence at the date of my death.

SCRIVENER v BURT [2020] NZHC 27 [27 January 2020]

(a)My wife shall pay all rates, taxes and other outgoings in respect of the property.

(b)My wife shall keep the property insured at her expense against fire and any other risks stipulated by my Trustee to the satisfaction of my Trustee.

(c)My wife shall pay and be responsible for maintenance of the property and shall keep it in the same condition as it is in at my death fair wear and tear and damage by fire, earthquake or inevitable accident excepted.

(d)At the request of my wife my trustee shall sell the property and expend the proceeds in the acquisition of another residence, licence or interest in any retirement complex and all the provisions hereof (including this provision for sale and acquisition) shall apply equally to such new residence.

(e)I empower my trustee in lieu of repurchasing a suitable residence or interest therein at the request of my wife to invest the sale proceeds or alternatively any surplus cash arising from such sale and acquisition and to pay the net annual income to my wife during her lifetime.

8.          UPON the death of my wife the property or the sale proceeds thereof and surplus cash (if any) referred to in clause 7 hereof shall be held as well the capital as the income thereof for my son RYAN PAUL BURT provided that should RYAN PAUL BURT fail to survive me leaving a child or children who survives me or is born after my death then that child (or if children then equally between them) shall take that share which the parent would otherwise have taken.

[3]    The principal beneficiary under Patrick’s will is therefore his wife at the time of his death, Ethel Burt (Ethel). Ethel is not Ryan’s mother and has no relationship with him.

[4]    The estate owns a property situated at 16 Rangitake Drive, New Plymouth, being all the land comprised and described in Certificate of Title TNF2/664 (Taranaki Registry). Ethel now wishes to have the property sold in accordance with cl 7(d) of the will and, to that end, her solicitors contacted the estate’s solicitors in May 2019.

[5]    Neither the estate’s solicitors, Mr Scrivener nor Ethel know where Ryan is. Attempts have been made to contact him by email and letter at his last known addresses, but to no avail. Both Mr Scrivener and Ethel depose that they have not seen him since shortly after Patrick’s death in 2004.

[6]Mr Scrivener therefore now seeks the following orders:

(a)granting leave to commence proceedings by way of originating application;

(b)dispensing with service on Ryan;

(c)removing Ryan as trustee;

(d)vesting the Rangitake Drive property in Mr Scrivener alone;

(e)directing Mr Scrivener to sell the property (and to list it with a real estate agent for that purpose).

[7]    Because the only asset remaining in the estate is the home ancillary directions are also sought that the following costs be met from the estate once the property has been sold:

(a)any legal fees on the sale;

(b)any Court and legal costs in obtaining the orders listed above; and

(c)any real estate agent commission.

[8]    I am satisfied that it is appropriate to bring these proceedings by way of originating application. I am also satisfied that service on Ryan should be dispensed with, on the grounds set out in rule 7.23(2)(a)(i), (ii), (iii) and (v) of the High Court Rules, namely that:

(a)requiring the applicant to proceed on notice would cause undue delay or prejudice to the estate;

(b)the application affects only the applicant (and Ethel, in whose interests the application is made);

(c)the application relates to a routine matter; and

(d)that the interests of justice require the application to be determined without serving notice of the application.

[9]The requirements of r 7.23(b) have also been now met1.

[10]   Once that point is reached, s 52 of the Trustee Act 1956 relevantly provides that:

(1) Subject to the provisions of subsections (2) and (3), in any of the following

cases, namely—

…

(b)where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person—

…

(iii)     cannot be found; …

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct.

…

(3) Where any such order relates to a trustee entitled or formerly entitled jointly with another person, and that trustee … cannot be found, … the land, interest, or right shall be vested in the other person who remains entitled, either alone or with any other person that the court may appoint.

[11]   In the present case, Ryan is possessed (jointly as Trustee) of the Rangitake Drive property and cannot be located. I am satisfied in order to effect the sale of the property in accordance with Patrick’s wishes as expressed in his will it is necessary to vest the property in the sole name of the remaining Trustee, Mr Scrivener and I make that order. Although arguably unnecessary (given Mr Scrivener’s powers

1      By which I mean following the filing of a further affidavit from Ethel, explaining aspects of the relevant family relationships, which were not initially clear to me.

as sole Trustee) for the avoidance of doubt I also make an order for the sale of the property and all consequential directions sought.

Rebecca Ellis J

Solicitors:

Till Henderson, New Plymouth for the Applicant