GRANT & ORS v DOWRICK [2018] NZHC 2242

GRANT & ORS v DOWRICK [2018] NZHC 2242

The court was satisfied on the affidavits and medical evidence that the respondent lacks capacity and that no service on him or other parties was necessary; accordingly it was appropriate to grant leave under Part 19, dispense with service, and make a vesting order under s 52(1)(b)(i) Trustee Act 1956 vesting the specified land in the continuing trustees so they can deal with the property.

Citation
[2018] NZHC 2242
Parties
Applicant Trustee: Simon David Grant; Applicant Trustee: Gulielma Margaret Dowrick; Applicant Trustee: Alastair John Mansell; Respondent Incapacitated Trustee: David John Dowrick
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 August 2018
Procedural Posture
Vesting Order (trustee Act 1956) / Part 19 High Court Rules Application / Application on the Papers; Judgment on Interlocutory and Substantive Application
Outcome
Application granted: leave to proceed under Part 19 and order dispensing with service granted; vesting order granted vesting the trust land in the applicants as continuing trustees.
Legal Topics
Vesting Order, Capacity to Manage Affairs, Dispensing With Service, Removal and Appointment of Trustee
Trusts Equity Civil Procedure Vesting Order Capacity to Manage Affairs Dispensing With Service Removal and Appointment of Trustee

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Parties

Simon David Grant

Applicant Trustee

Gulielma Margaret Dowrick

Applicant Trustee

Alastair John Mansell

Applicant Trustee

David John Dowrick

Respondent Incapacitated Trustee

Procedural Posture

Vesting Order (trustee Act 1956) / Part 19 High Court Rules Application / Application on the Papers; Judgment on Interlocutory and Substantive Application

Legal Issues

  1. 1 Whether leave to proceed under Part 19 and dispense with service on the incapacitated trustee should be granted
  2. 2 Whether a vesting order should be made under s 52(1)(b)(i) of the Trustee Act 1956 to vest the trust land in the continuing trustees
  3. 3 Whether medical evidence establishes the respondent's incapacity to execute necessary documentation

Ratio Decidendi

The court was satisfied on the affidavits and medical evidence that the respondent lacks capacity and that no service on him or other parties was necessary; accordingly it was appropriate to grant leave under Part 19, dispense with service, and make a vesting order under s 52(1)(b)(i) Trustee Act 1956 vesting the specified land in the continuing trustees so they can deal with the property.

Court Disposition

Application granted: leave to proceed under Part 19 and order dispensing with service granted; vesting order granted vesting the trust land in the applicants as continuing trustees.

Orders

  • Leave granted to bring the originating application under Part 19 of the High Court Rules and an order dispensing with service on David John Dowrick
  • Vesting order granted under s 52(1)(b)(i) Trustee Act 1956 vesting the trust property (Certificate of Title SA1B/1191, Lot 17 DPS7297) in Simon David Grant, Gulielma Margaret Dowrick and Alastair John Mansell as the continuing trustees