THE G K & C O PALLISER FAMILY TRUST [2019] NZHC 2871

THE G K & C O PALLISER FAMILY TRUST [2019] NZHC 2871

Because Mrs Palliser was found by medical evidence to lack capacity, had been validly removed as trustee under the trust deed, and the application was uncontentious with beneficiary consent, the Court exercised its discretion under the Trustee Act and High Court Rules to vest the land in the current trustees, to dispense with personal service, and to dispense with appointment of a litigation guardian as being unnecessary in the circumstances so as to enable registration and sale of the property to meet care costs.

Citation
[2019] NZHC 2871
Parties
Applicant Trustee: Graeme Keith Palliser; Applicant Trustee: Sarah Louise Palliser; Applicant Independent Trustee: Palliser Trustee Company Limited; Incapacitated Former Trustee / Interested Party: Carol Olive Palliser; Interested Parties: Beneficiaries of The G K & C O Palliser Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 November 2019
Procedural Posture
Application Under Trustee Act 1956 for Vesting Order / Property Registration / Hearing in Chambers (on the Papers) – Application for Vesting Order, Dispensing Service and Leave to Proceed by Originating Application
Outcome
Application granted
Legal Topics
Vesting Order, Removal of Trustee, Dispensing With Service, Litigation Guardian, Enduring Power of Attorney, Capacity to Act as Trustee, Sale of Trust Property
Trusts Property Law Civil Procedure Capacity/mental Competence Elder Law Vesting Order Removal of Trustee Dispensing With Service +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 5 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Graeme Keith Palliser

Applicant Trustee

Sarah Louise Palliser

Applicant Trustee

Palliser Trustee Company Limited

Applicant Independent Trustee

Carol Olive Palliser

Incapacitated Former Trustee / Interested Party

Beneficiaries of The G K & C O Palliser Family Trust

Interested Parties

Procedural Posture

Application Under Trustee Act 1956 for Vesting Order / Property Registration / Hearing in Chambers (on the Papers) – Application for Vesting Order, Dispensing Service and Leave to Proceed by Originating Application

Legal Issues

  1. 1 Whether the Court should vest the trust land in the current trustees to enable registration and sale
  2. 2 Whether personal service on the incapacitated former trustee and beneficiaries can be dispensed with
  3. 3 Whether a litigation guardian is required for the incapacitated trustee under the High Court Rules

Ratio Decidendi

Because Mrs Palliser was found by medical evidence to lack capacity, had been validly removed as trustee under the trust deed, and the application was uncontentious with beneficiary consent, the Court exercised its discretion under the Trustee Act and High Court Rules to vest the land in the current trustees, to dispense with personal service, and to dispense with appointment of a litigation guardian as being unnecessary in the circumstances so as to enable registration and sale of the property to meet care costs.

Court Disposition

Application granted

Orders

  • The land contained in identifier NA977/66 North Auckland Land Registration District and situated at 100 Braemar Road, Castor Bay, Auckland is vested in the applicants Graeme Keith Palliser, Sarah Louise Palliser and Palliser Trustee Company Limited as Trustees of The G K & C O Palliser Family Trust.
  • Service of this proceeding on Carol Olive Palliser and on the beneficiaries of the Trust is dispensed with.