Barratt-Boyes v Huntley [2014] NZHC 1718

Barratt-Boyes v Huntley [2014] NZHC 1718

Given certificates of mental incapacity for the former trustees, their removal under s 43(1) supported by enduring powers of attorney, the trusts' ownership of the property, and the authority in s 52 of the Trustee Act 1956 to make vesting orders, the Court properly exercised its power to vest the property in the current trustees and dispensed with service, so the vesting order was made.

Citation
[2014] NZHC 1718
Parties
Plaintiffs: John Norman Barratt-Boyes and Beverley Kaye Deverall as trustees of the Kenneth Huntley Family Trust and as trustees of the Shirley Huntley Family Trust; First Defendant: Kenneth Huntley; Second Defendant: Shirley Donaldson Huntley
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 July 2014
Procedural Posture
Application for Vesting Order Under Trustee Act 1956 (s 52) / Judgment on the Papers (application Decided Pursuant to High Court Rules R 11.5)
Outcome
Vesting order granted
Legal Topics
Vesting Order, Removal of Trustees, Mental Incapacity, Enduring Power of Attorney, Trustee Act 1956 S 52, Trustee Act 1956 S 43(1)
Trusts Property Law Civil Procedure Vesting Order Removal of Trustees Mental Incapacity Enduring Power of Attorney Trustee Act 1956 S 52 +1 more

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Parties

John Norman Barratt-Boyes and Beverley Kaye Deverall as trustees of the Kenneth Huntley Family Trust and as trustees of the Shirley Huntley Family Trust

Plaintiffs

Kenneth Huntley

First Defendant

Shirley Donaldson Huntley

Second Defendant

Procedural Posture

Application for Vesting Order Under Trustee Act 1956 (s 52) / Judgment on the Papers (application Decided Pursuant to High Court Rules R 11.5)

Legal Issues

  1. 1 Whether a vesting order under s 52 of the Trustee Act 1956 should be made to vest trust property in the current trustees
  2. 2 Whether the former trustees could be removed and replaced given mental incapacity and use of enduring powers of attorney
  3. 3 Whether service on the former trustees could be dispensed with and the application determined on the papers

Ratio Decidendi

Given certificates of mental incapacity for the former trustees, their removal under s 43(1) supported by enduring powers of attorney, the trusts' ownership of the property, and the authority in s 52 of the Trustee Act 1956 to make vesting orders, the Court properly exercised its power to vest the property in the current trustees and dispensed with service, so the vesting order was made.

Court Disposition

Vesting order granted

Orders

  • The property at 77c Benson Road, Remuera, Auckland (CT NA54C/272) is vested in John Norman Barratt-Boyes and Beverley Kaye Deverall as trustees of the Kenneth Huntley Family Trust and in John Norman Barratt-Boyes and Beverley Kaye Deverall as trustees of the Shirley Huntley Family Trust as tenants-in-common in equal...
  • Leave reserved to apply for further orders to implement the vesting; such application may be made by memorandum