HATWELL v HATWELL [2018] NZHC 3064

Parties

Procedural Posture

Application for Vesting Orders Under the Trustee Act 1956 / Judgment on the Papers (application Under Part 18 High Court Rules)

Legal Issues

1. 1 Whether service of the proceedings could be dispensed with under High Court Rules Part 18
2. 2 Whether the jurisdictional requirements of s 52(1)(b)(i) Trustee Act 1956 were met
3. 3 Whether vesting orders were necessary and appropriate given a trustee's incapacity and inability to execute documents

Ratio Decidendi

Because the former trustee was demonstrably incapacitated within the meaning of the Act, final beneficiaries consented, an independent trustee remained to protect interests, and the incapacity prevented execution of transfer documents, the Court had jurisdiction under s 52(1)(b)(i) Trustee Act 1956 and was justified in dispensing with service and making vesting orders to record the current trustees as registered proprietors; the Registrar-General was authorised to record the transfers and costs were payable from trust assets.

Court Disposition

Application granted. Service dispensed with; vesting orders made in favour of the plaintiffs (John Leonard Hatwell and Hobbs Rose Trustee Company Limited) over specified Te Awamutu properties; Registrar-General of Land authorised to record transfers; reasonable costs to be met from Southern Trust assets.

Orders

• Service of the proceedings is dispensed with as to any party.
• Vesting in the plaintiffs John Leonard Hatwell and Hobbs Rose Trustee Company Limited as trustees of the Southern Trust of the right title and interest of the defendants Joyce Evelyn Hatwell, John Leonard Hatwell and Hobbs Rose Trustee Company Limited in the following properties: Identifier SA60A/63 (Lot 2 DP 64936...