CADE v CADE [2016] NZHC 1624

CADE v CADE [2016] NZHC 1624

Medical evidence established the defendant was incapacitated under r 4.29 and was properly retired as trustee under s 43; where removal is proper and the proceeding only vests trust land in replacement trustees, a litigation guardian is not required and service may be dispensed; s 52 authorises vesting the defendant's share in the named trustees.

Citation
[2016] NZHC 1624
Parties
Plaintiff and Current Trustee: Michael Grant Cade; Plaintiff and Current Trustee: Paul Gregory Cade; Defendant and Removed Trustee (incapacitated): Alexander Edward Cade
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 July 2016
Procedural Posture
Trust Vesting Application Under Trustee Act 1956 / Judgment on Application for Vesting Orders and Directions (on the Papers)
Outcome
Application granted
Legal Topics
Vesting Orders, Removal of Trustee for Incapacity, Litigation Guardian Dispensed, Service Dispensed
Trusts Property Civil Procedure Elder Law/capacity Vesting Orders Removal of Trustee for Incapacity Litigation Guardian Dispensed Service Dispensed

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Parties

Michael Grant Cade

Plaintiff and Current Trustee

Paul Gregory Cade

Plaintiff and Current Trustee

Alexander Edward Cade

Defendant and Removed Trustee (incapacitated)

Procedural Posture

Trust Vesting Application Under Trustee Act 1956 / Judgment on Application for Vesting Orders and Directions (on the Papers)

Legal Issues

  1. 1 Whether the defendant is incapacitated under High Court Rules r 4.29
  2. 2 Whether a litigation guardian is required under r 4.30
  3. 3 Whether service may be dispensed under Part 18 High Court Rules

Ratio Decidendi

Medical evidence established the defendant was incapacitated under r 4.29 and was properly retired as trustee under s 43; where removal is proper and the proceeding only vests trust land in replacement trustees, a litigation guardian is not required and service may be dispensed; s 52 authorises vesting the defendant's share in the named trustees.

Court Disposition

Application granted

Orders

  • Evidence may be made by way of affidavit and the proceeding be dealt with on the papers
  • Alexander Edward Cade is an incapacitated person for the purpose of the proceedings pursuant to High Court Rules r 4.29