LEWIS, and ORS v LEWIS [2021] NZHC 585

LEWIS, and ORS v LEWIS [2021] NZHC 585

Leave to proceed without notice was granted because interests of justice and lack of necessity for pleadings; s116 of the Trusts Act 2019 could not be invoked because the trustee retired before commencement and Schedule 1 cl 11(2) requires completion as if the Act had not commenced; the former trustee remains on title and lacks capacity so a vesting order under Trustee Act 1956 s52(1)(b) was necessary and appropriate to vest the property in the current trustees.

Citation
[2021] NZHC 585
Parties
Applicant (trustee): Rohan Murray Lewis; Applicant (trustee): Aidan Campbell Jordan-Lewis; Applicant (trustee): Macalister Mazengarb Trust Company (2014) Limited as trustees of the Camroc Lewis Trust; Respondent (former Trustee): Lyndsay Eleanor Lewis
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 March 2021
Procedural Posture
Vesting Order Application Under Trustee Act 1956 / Originating Application Without Notice (on the Papers)
Outcome
Application granted; vesting order made pursuant to Trusts Act 2019 sch 1 cl 11(2) and Trustee Act 1956 s52(1)(b); leave to apply for further directions reserved; no order as to costs.
Legal Topics
Vesting Order, Trustee Removal and Replacement, Mental Incapacity, Transitional Provisions (trusts Act 2019)
Trusts Property Civil Procedure Equity Vesting Order Trustee Removal and Replacement Mental Incapacity Transitional Provisions (trusts Act 2019)

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 4 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Rohan Murray Lewis

Applicant (trustee)

Aidan Campbell Jordan-Lewis

Applicant (trustee)

Macalister Mazengarb Trust Company (2014) Limited as trustees of the Camroc Lewis Trust

Applicant (trustee)

Lyndsay Eleanor Lewis

Respondent (former Trustee)

Procedural Posture

Vesting Order Application Under Trustee Act 1956 / Originating Application Without Notice (on the Papers)

Legal Issues

  1. 1 Whether leave to proceed by originating application without notice should be granted
  2. 2 Whether the Trusts Act 2019 s116 applies or the transitional provision requires reliance on Trustee Act 1956 s52
  3. 3 Whether a vesting order under Trustee Act 1956 s52(1)(b) is appropriate where a removed trustee remains on title and lacks capacity

Ratio Decidendi

Leave to proceed without notice was granted because interests of justice and lack of necessity for pleadings; s116 of the Trusts Act 2019 could not be invoked because the trustee retired before commencement and Schedule 1 cl 11(2) requires completion as if the Act had not commenced; the former trustee remains on title and lacks capacity so a vesting order under Trustee Act 1956 s52(1)(b) was necessary and appropriate to vest the property in the current trustees.

Court Disposition

Application granted; vesting order made pursuant to Trusts Act 2019 sch 1 cl 11(2) and Trustee Act 1956 s52(1)(b); leave to apply for further directions reserved; no order as to costs.

Orders

  • Order pursuant to cl 11(2) of sch 1 of the Trusts Act 2019 and s 52(1)(b) of the Trustee Act 1956 vesting title to 5 Gurkha Crescent, Khandallah (Lot 11 Deposited Plan 26892) in the applicants (Rohan Murray Lewis; Aidan Campbell Jordan-Lewis; Macalister Mazengarb Trust Company (2014) Limited)
  • Leave reserved to apply for further directions