The Black Family Trust [2019] NZHC 2950

The Black Family Trust [2019] NZHC 2950 [12 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-2480[2019] NZHC 2950UNDER Section 52 of the Trustee Act 1956IN THE MATTER of The Black Family TrustIN AN APPLICATION by STEPHANIE LOUISE BLACKRUSSELL, PHILIPPA CATHERINEBARRETT and JENNIFER GLENISEBLACKApplicantsFOR AN ORDER As to the removal of a trustee and vestingordersOn the papersAppearances: A Peat for ApplicantsJudgment: 12 November 2019JUDGMENT OF WALKER JThis judgment was delivered by me on 12 November 2019 at 4.30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] The applicants, Stephanie Russell, Philippa Barrett and Jennifer Black, arethree of the four trustees of the Black Family Trust (the Trust). The fourth trustee isGraham Black. The Trust was settled in 1997 by Mr Black and his wife Jennifer Black.The final beneficiaries of the Trust are their children, Stephanie and Philippa.[2] Sadly, Mr Black is suffering from advanced Alzheimer's dementia that is bothprogressive and irreversible. The evidence from Mr Black's doctor is that Mr Black isunable to exercise judgement and would almost certainly not recall any details of anytrusts in respect of which he is a trustee.[3] Jennifer Black holds active enduring powers of attorney in relation to propertyand in relation to personal care and welfare for her husband. This does not permit MrsBlack to exercise her powers under the enduring power of attorney to effect herhusband's retirement as a trustee.1[4] The applicants therefore make this 'without notice' originating application fororders removing Mr Black as trustee, vesting title in properties held under the Trust inthe remaining trustees and ancillary orders. This is necessary to enable the Trust tocontinue to operate, for the Trust's administration and to deal with property held bythe Trust in a manner acceptable to Land Information New Zealand. In my assessment,it is therefore in the best interests of the beneficiaries.[5] I consider it is appropriate for these proceedings to be brought by way oforiginating application. Leave to do so is granted accordingly. I am satisfied that nouseful purpose would be served in appointing a litigation guardian for Mr Black.2[6] I am also satisfied that it is appropriate to dispense with service of theapplication on Mr Black and any of the discretionary beneficiaries to the Trust.Service on Mr Black in the circumstances serves no useful purpose. The orders soughtwill not change any of the beneficiaries' rights or obligations under the Trustprovisions.1 Re Godfrey Family Trust [2017] 3 NZLR 198.2 Docherty v Docherty [2013] NZHC 1885 at [29]-[30].[7] I accordingly make orders:(a) Granting leave to commence this proceeding by way of originatingapplication;(b) Dispensing with service on Graham Allister Black and the beneficiariesunder the Black Family Trust;(c) Dispensing with any need to appoint a litigation for Graham AllisterBlack;(d) Removing Graham Allister Black as a trustee of the Black Family Trust;and(e) Pursuant to s 52(1)(b)(i) of the Trustee Act 1956, vesting the followingproperties in the names of Stephanie Louise Black Russell, PhilippaCatherine Barrett, and Jennifer Glenise Black as the continuing trusteesof The Black Family Trust:(i) the freehold estate situated at 3 Hibiscus Avenue, Snells Beach,being the land contained within certificate of title 248100 andhaving the legal description Lot 2 Deposited Plan 361083; and(ii) the cross lease situated at 2 Gifford Street, St Heliers, being theland contained within certificate of title NA59A/333 and madeup of:1. fee simple – half share with the legal description Lot 13Deposited Plan 16941; and2. leasehold with the legal description Flat 2 Deposited Plan105708.......................................................Walker J