VOLLEMAERE & ORS [2014] NZHC 1698

VOLLEMAERE & ORS [2014] NZHC 1698

The Court was satisfied that Mrs Powell had been validly removed as trustee due to incapacity supported by medical evidence, that replacement trustee had been appointed, that vesting was necessary to regularise title and enable disposal, and that no interested party would be prejudiced by proceeding without notice; accordingly vesting orders under s52 Trustee Act 1956 were granted and costs were ordered to be paid from Trust funds.

Citation
[2014] NZHC 1698
Parties
Applicant / Trustee: Henry Jules Vollemaere; Applicant / Trustee / Beneficiary: Colin Gordon Powell; Applicant / Trustee / Beneficiary: Trevor Keith Powell; Trustee (replacement): Patrick Joseph Silveira; Registered Proprietor / Incapacitated Trustee and Beneficiary: Violet Mary Isabella Powell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 July 2014
Procedural Posture
Application Under Trustee Act 1956 for Vesting Orders of Land / Judgment on Originating Application Heard on the Papers (without Notice)
Outcome
Vesting orders granted as sought; costs to be paid out of Trust funds; leave to proceed by originating application granted
Legal Topics
Vesting Order, Replacement/removal of Trustee, Capacity/incapacity, Originating Application Without Notice, Land Registration
Trusts Property Law Civil Procedure Equity Vesting Order Replacement/removal of Trustee Capacity/incapacity Originating Application Without Notice +1 more

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Parties

Henry Jules Vollemaere

Applicant / Trustee

Colin Gordon Powell

Applicant / Trustee / Beneficiary

Trevor Keith Powell

Applicant / Trustee / Beneficiary

Patrick Joseph Silveira

Trustee (replacement)

Violet Mary Isabella Powell

Registered Proprietor / Incapacitated Trustee and Beneficiary

Procedural Posture

Application Under Trustee Act 1956 for Vesting Orders of Land / Judgment on Originating Application Heard on the Papers (without Notice)

Legal Issues

  1. 1 Whether the court should make vesting orders to register current trustees as proprietors of the specified land
  2. 2 Whether the proceeding could be properly dealt with without notice to the incapacitated trustee
  3. 3 Whether the replacement of a trustee for incapacity was effective and justified

Ratio Decidendi

The Court was satisfied that Mrs Powell had been validly removed as trustee due to incapacity supported by medical evidence, that replacement trustee had been appointed, that vesting was necessary to regularise title and enable disposal, and that no interested party would be prejudiced by proceeding without notice; accordingly vesting orders under s52 Trustee Act 1956 were granted and costs were ordered to be paid from Trust funds.

Court Disposition

Vesting orders granted as sought; costs to be paid out of Trust funds; leave to proceed by originating application granted

Orders

  • The following land is vested in Henry Jules Vollemaere, Colin Gordon Powell, Trevor Keith Powell and Patrick Joseph Silveira as trustees of the A & V Settlement Trust: (i) 72 Te Atatu Road, Te Atatu South being Lot 1 DP 34982 and Lot 36 DP 69299 Identifier NA119D/284 North Auckland Land Registry; and (ii) 76 Te...
  • All costs in relation to the application are to be paid out of the Trust funds.