B H AND M W MANNING FAMILY TRUST [2016] NZHC 1288

B H AND M W MANNING FAMILY TRUST [2016] NZHC 1288

Because the respondent trustee was mentally incapacitated and service/representation would be meaningless, and an affected beneficiary consented, the Court properly exercised its procedural discretion to dispense with service and representation and made a vesting order under s52 Land Transfer Act 1952 to enable transfer of the trust's principal asset.

Citation
[2016] NZHC 1288
Parties
Applicant Trustee: Paul Robert Franklin; Applicant Trustee: Graeme Lyn Manning; Trust: B H and M W Manning Family Trust; Respondent; Incapacitated Trustee and Registered Proprietor: Bruce Home Manning
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 June 2016
Procedural Posture
Vesting Order Under Trustee Act 1956 and Land Transfer Act 1952 / Determination on Without‑notice Originating Application
Outcome
Application granted
Legal Topics
Vesting Order, Removal of Trustee, Mental Incapacity, Service and Representation Dispensed
Trusts Property Law Land Registration Equity Vesting Order Removal of Trustee Mental Incapacity Service and Representation Dispensed

Case Brief

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Parties

Paul Robert Franklin

Applicant Trustee

Graeme Lyn Manning

Applicant Trustee

B H and M W Manning Family Trust

Trust

Bruce Home Manning

Respondent; Incapacitated Trustee and Registered Proprietor

Procedural Posture

Vesting Order Under Trustee Act 1956 and Land Transfer Act 1952 / Determination on Without‑notice Originating Application

Legal Issues

  1. 1 Whether leave to commence by originating application without service was appropriate
  2. 2 Whether service and representation could be dispensed with because the defendant lacked mental capacity
  3. 3 Whether a vesting order under s52 Land Transfer Act 1952 could be made to enable transfer of trust land where a registered proprietor trustee is incapacitated

Ratio Decidendi

Because the respondent trustee was mentally incapacitated and service/representation would be meaningless, and an affected beneficiary consented, the Court properly exercised its procedural discretion to dispense with service and representation and made a vesting order under s52 Land Transfer Act 1952 to enable transfer of the trust's principal asset.

Court Disposition

Application granted

Orders

  • Leave granted to commence proceedings by way of originating application
  • Order dispensing with representation of the defendant and dispensing with service on him or any other person