HAMMOND v VAN ERP [2018] NZHC 3058

HAMMOND v VAN ERP [2018] NZHC 3058

Because the respondent is certified mentally incapable and was validly removed as trustee under s43, and because vesting the land under s52(1)(b)(i) is necessary to bring the registered title into conformity with the current trustees and permit sale for the respondent's benefit, the Court granted leave to proceed by originating application, dispensed with service, and ordered vesting of the property in the continuing trustees.

Citation
[2018] NZHC 3058
Parties
Applicant Continuing Trustee: Johanna Linda Hammond; Applicant Independent Trustee: Allen Needham Trustees (2009) Limited; Respondent Removed Trustee/incapacitated Beneficiary: Frank Lambert van Erp
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 November 2011
Procedural Posture
Application for Vesting Order Under the Trustee Act 1956 / Judgment on the Papers
Outcome
Application granted
Legal Topics
Vesting Order, Trustee Removal, Dispensing With Service, Mental Incapacity
Trusts Property Law Capacity/incapacity Civil Procedure Vesting Order Trustee Removal Dispensing With Service Mental Incapacity

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Parties

Johanna Linda Hammond

Applicant Continuing Trustee

Allen Needham Trustees (2009) Limited

Applicant Independent Trustee

Frank Lambert van Erp

Respondent Removed Trustee/incapacitated Beneficiary

Procedural Posture

Application for Vesting Order Under the Trustee Act 1956 / Judgment on the Papers

Legal Issues

  1. 1 Whether leave to commence by originating application should be granted
  2. 2 Whether service should be dispensed with given respondent's mental incapacity
  3. 3 Whether land should be vested in new trustees under the Trustee Act 1956 to reflect current trustee appointments and permit sale

Ratio Decidendi

Because the respondent is certified mentally incapable and was validly removed as trustee under s43, and because vesting the land under s52(1)(b)(i) is necessary to bring the registered title into conformity with the current trustees and permit sale for the respondent's benefit, the Court granted leave to proceed by originating application, dispensed with service, and ordered vesting of the property in the continuing trustees.

Court Disposition

Application granted

Orders

  • Leave granted to commence proceedings by way of originating application
  • Service of the originating application dispensed with