Re Phillips Family Trust [2019] NZHC 422

Re Phillips Family Trust [2019] NZHC 422

Because the mortgage remained a registered formality in the names of deceased original trustees and the advances had been repaid, the Court properly exercised its statutory power under s 52 Trustee Act 1956 and its inherent jurisdiction to vest the registered mortgage in the current trustees to enable them to discharge the mortgage and deal with the property; leave for originating application and dispensation of service were appropriate given the mechanical nature of the relief and absence of objections.

Citation
[2019] NZHC 422
Parties
Applicant Trustee: Ellen Caroline Phillips; Applicant Trustee: Catherine Ann Atchison; Original Trustee Deceased: Beatrice Valda Phillips; Original Trustee Deceased: Lynley Cowie Wilson; Settlor: Diane Cowie Turner; Beneficiary / Mortgagor: Daughter of Beatrice Valda Phillips
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 March 2019
Procedural Posture
Application Under Trustee Act 1956 S 52 for Vesting Order (trust/property) / Originating Application on the Papers; Decided Without Notice
Outcome
Application granted
Legal Topics
Vesting of Trust Property, Trustee Act S 52, Inherent Jurisdiction, Discharge of Mortgage, Originating Application Procedure
Trusts Property Equity Civil Procedure Vesting of Trust Property Trustee Act S 52 Inherent Jurisdiction Discharge of Mortgage +1 more

Case Brief

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Parties

Ellen Caroline Phillips

Applicant Trustee

Catherine Ann Atchison

Applicant Trustee

Beatrice Valda Phillips

Original Trustee Deceased

Lynley Cowie Wilson

Original Trustee Deceased

Diane Cowie Turner

Settlor

Daughter of Beatrice Valda Phillips

Beneficiary / Mortgagor

Procedural Posture

Application Under Trustee Act 1956 S 52 for Vesting Order (trust/property) / Originating Application on the Papers; Decided Without Notice

Legal Issues

  1. 1 Whether the Court should grant leave to commence by originating application without notice
  2. 2 Whether service on third parties may be dispensed with
  3. 3 Whether the Court should vest a mortgage registered in the names of deceased original trustees in the current trustees under s 52 Trustee Act 1956 or its inherent jurisdiction

Ratio Decidendi

Because the mortgage remained a registered formality in the names of deceased original trustees and the advances had been repaid, the Court properly exercised its statutory power under s 52 Trustee Act 1956 and its inherent jurisdiction to vest the registered mortgage in the current trustees to enable them to discharge the mortgage and deal with the property; leave for originating application and dispensation of service were appropriate given the mechanical nature of the relief and absence of objections.

Court Disposition

Application granted

Orders

  • Leave is granted to the applicants to commence these proceedings by way of originating application.
  • Service on any third parties is dispensed with.