WYMER v WYMER [2017] NZHC 1782

WYMER v WYMER [2017] NZHC 1782

Given the death, incapacity and resignation of former trustees, the lawful appointment of a replacement trustee, adequate service on interested parties and absence of any defence or objection, it was expedient under s 52 Trustee Act 1956 to vest the registered land in the current trustees; default judgment was appropriate where no defence was filed.

Citation
[2017] NZHC 1782
Parties
Plaintiffs; Trustees of the RN & MH Wymer Family Trust: KEVIN JAMES WYMER; RICHARD CLARK WYMER; JACQUELINE MARIE DOROTICH; ROSTREVOR TRUSTEES TEN LIMITED; First Defendants; Executors of the Estate of Richard Nelson Wymer: KEVIN JAMES WYMER; RICHARD CLARK WYMER; JACQUELINE MARIE DOROTICH; Second Defendant; Former Trustee; Person Under Disability (mentally Incapable): MARIE HELEN WYMER; Third Defendant; Former Trustee: ELTAN TRUST MANAGEMENT LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2017
Procedural Posture
Application for Vesting Orders Under the Trustee Act 1956 / Determination on the Papers; Judgment Delivered
Outcome
Vesting orders granted; judgment by default entered
Legal Topics
Vesting Orders, Trustee Appointment and Substitution, Mental Incapacity of Trustee, Service and Default Judgment, Trust Administration
Trusts Property Equity Civil Procedure Vesting Orders Trustee Appointment and Substitution Mental Incapacity of Trustee Service and Default Judgment +1 more

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Parties

KEVIN JAMES WYMER; RICHARD CLARK WYMER; JACQUELINE MARIE DOROTICH; ROSTREVOR TRUSTEES TEN LIMITED

Plaintiffs; Trustees of the RN & MH Wymer Family Trust

KEVIN JAMES WYMER; RICHARD CLARK WYMER; JACQUELINE MARIE DOROTICH

First Defendants; Executors of the Estate of Richard Nelson Wymer

MARIE HELEN WYMER

Second Defendant; Former Trustee; Person Under Disability (mentally Incapable)

ELTAN TRUST MANAGEMENT LIMITED

Third Defendant; Former Trustee

Procedural Posture

Application for Vesting Orders Under the Trustee Act 1956 / Determination on the Papers; Judgment Delivered

Legal Issues

  1. 1 Whether the Court should exercise its discretion under s 52 Trustee Act 1956 to vest land in the current trustees
  2. 2 Whether any interested parties might object to the vesting orders and whether service was adequate
  3. 3 Whether judgment by default under the High Court Rules was appropriate

Ratio Decidendi

Given the death, incapacity and resignation of former trustees, the lawful appointment of a replacement trustee, adequate service on interested parties and absence of any defence or objection, it was expedient under s 52 Trustee Act 1956 to vest the registered land in the current trustees; default judgment was appropriate where no defence was filed.

Court Disposition

Vesting orders granted; judgment by default entered

Orders

  • Order vesting the land comprised in Certificate of Title WN32D/972 (Lot 2 DP 64776, estate in fee simple of 1,510 m2 more or less) in the plaintiffs (the current trustees) under s 52 Trustee Act 1956
  • Order vesting the land comprised in Certificate of Title SA26D/1317 (Lot 1182 DP South Auckland 29530, estate in fee simple of 528 m2 more or less) in the plaintiffs (the current trustees) under s 52 Trustee Act 1956