COUSINS & OR v COUSINS & ORS [2015] NZHC 1482

COUSINS & OR v COUSINS & ORS [2015] NZHC 1482

Because the remaining trustees required title vested to effect a bona fide sale, there was no opposition, the mortgagee's interest was preserved and would be discharged on settlement, and no party would be prejudiced, the court properly exercised its discretion under s 52 Trustee Act 1956 to dispense with service and make the vesting order transferring title to the remaining trustees.

Citation
[2015] NZHC 1482
Parties
Plaintiff and Defendant Trustee: Agnes Mary Cousins; Plaintiff and Defendant Trustee: FVM Trustees (No 1) Limited; Defendant Former Trustee: Kenneth Cousins
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 June 2015
Procedural Posture
Application for Vesting Order Under Trustee Act 1956 / Without Notice Application Heard on Papers
Outcome
Service of proceeding dispensed with; vesting order granted under s 52 Trustee Act 1956; costs to be paid from trust assets.
Legal Topics
Vesting Order, Removal of Trustee for Incapacity, Service Dispensed
Trusts Property Law Civil Procedure Vesting Order Removal of Trustee for Incapacity Service Dispensed

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Parties

Agnes Mary Cousins

Plaintiff and Defendant Trustee

FVM Trustees (No 1) Limited

Plaintiff and Defendant Trustee

Kenneth Cousins

Defendant Former Trustee

Procedural Posture

Application for Vesting Order Under Trustee Act 1956 / Without Notice Application Heard on Papers

Legal Issues

  1. 1 Whether service of the proceeding may be dispensed with
  2. 2 Whether a vesting order should be granted under s 52 Trustee Act 1956 to transfer title to the remaining trustees
  3. 3 Whether any party would be prejudiced by proceeding without service

Ratio Decidendi

Because the remaining trustees required title vested to effect a bona fide sale, there was no opposition, the mortgagee's interest was preserved and would be discharged on settlement, and no party would be prejudiced, the court properly exercised its discretion under s 52 Trustee Act 1956 to dispense with service and make the vesting order transferring title to the remaining trustees.

Court Disposition

Service of proceeding dispensed with; vesting order granted under s 52 Trustee Act 1956; costs to be paid from trust assets.

Orders

  • Service of this proceeding is dispensed with.
  • Title to 6A Flaxmore Place, Nelson (Lot 2 DP 16590, CT NL10D/441) is vested in Agnes Mary Cousins and FVM Trustees (No 1) Limited and the Registrar‑General of Land is directed and authorised to amend the title accordingly.