STRANG v STRANG [2016] NZHC 2203

STRANG v STRANG [2016] NZHC 2203

The defendant is an incapacitated person under r 4.29 and was validly removed as trustee under the trust deed; because appointment of a litigation guardian would serve no useful purpose and there is no sensible opposition, service and the litigation guardian requirement are dispensed with and the Court vests the defendant's registered interest in the trust property in the continuing trustees under s 52(1)(b)(i) of the Trustee Act 1956.

Citation
[2016] NZHC 2203
Parties
Plaintiff (trustee): Norma Helene Strang; Plaintiff (trustee): Russell Thomas Smith; Defendant (removed Trustee; Incapacitated): Murray Vernon Strang
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 September 2016
Procedural Posture
Application for Vesting Order Under the Trustee Act 1956 / Judgment on Application Dealt With on the Papers
Outcome
Application granted
Legal Topics
Vesting Order, Removal of Trustee, Capacity and Incapacitated Litigant, Service and Representation, Enduring Power of Attorney
Trusts Property Civil Procedure Elder Law/capacity Vesting Order Removal of Trustee Capacity and Incapacitated Litigant Service and Representation +1 more

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Parties

Norma Helene Strang

Plaintiff (trustee)

Russell Thomas Smith

Plaintiff (trustee)

Murray Vernon Strang

Defendant (removed Trustee; Incapacitated)

Procedural Posture

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

Legal Issues

  1. 1 Whether the defendant is an incapacitated person under High Court Rules r 4.29
  2. 2 Whether a litigation guardian is required for the incapacitated defendant or the requirement should be dispensed with
  3. 3 Whether service on the defendant and other interested persons should be dispensed with

Ratio Decidendi

The defendant is an incapacitated person under r 4.29 and was validly removed as trustee under the trust deed; because appointment of a litigation guardian would serve no useful purpose and there is no sensible opposition, service and the litigation guardian requirement are dispensed with and the Court vests the defendant's registered interest in the trust property in the continuing trustees under s 52(1)(b)(i) of the Trustee Act 1956.

Court Disposition

Application granted

Orders

  • Proceedings and relief dealt with on the basis of the plaintiffs' evidence on the papers
  • Find that Murray Vernon Strang is an incapacitated person for the purposes of r 4.29 High Court Rules