MACKENZIE v MACKENZIE [2020] NZHC 2607

MACKENZIE v MACKENZIE [2020] NZHC 2607

The Court exercised its jurisdiction under s52 of the Trustee Act 1956 to make a vesting order because the retiring trustee (Mr White) unreasonably refused to effect a transfer of land that did not vest automatically under s47; beneficiaries had standing under s67; other interested parties including a co-registered retired trustee and the mortgagee consented (the latter subject to protection) so a conditional vesting order was appropriate.

Citation
[2020] NZHC 2607
Parties
Plaintiff Beneficiary: Rebecca Mary Mackenzie; Plaintiff Beneficiary: Caitlin Stuart Mackenzie; Plaintiff Beneficiary: Dominique Dulcina Mackenzie; Plaintiff Beneficiary: Sophie Subritzky Mackenzie; First Defendant Trustee: Beverly Ann MacKenzie; First Defendant Trustee: Dulcina Ida Subritzky; Second Defendant Retired Trustee/registered Owner: Kirk Tyson White
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 October 2020
Procedural Posture
Application for Vesting Order Under the Trustee Act 1956 / Judgment Following Proof Hearing
Outcome
Vesting order granted under s52 of the Trustee Act 1956; order conditioned on contemporaneous registration of discharge of the registered mortgage; costs awarded to the plaintiffs against the second defendant
Legal Topics
Vesting Orders, Retirement of Trustees, Trustees' Duties, Registration of Land, Mortgage Priority
Trusts Property Law Equity Civil Procedure Vesting Orders Retirement of Trustees Trustees' Duties Registration of Land +1 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 4 Authorities cited 4 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Rebecca Mary Mackenzie

Plaintiff Beneficiary

Caitlin Stuart Mackenzie

Plaintiff Beneficiary

Dominique Dulcina Mackenzie

Plaintiff Beneficiary

Sophie Subritzky Mackenzie

Plaintiff Beneficiary

Beverly Ann MacKenzie

First Defendant Trustee

Dulcina Ida Subritzky

First Defendant Trustee

Kirk Tyson White

Second Defendant Retired Trustee/registered Owner

Procedural Posture

Application for Vesting Order Under the Trustee Act 1956 / Judgment Following Proof Hearing

Legal Issues

  1. 1 Whether the Court may make a vesting order under s52 of the Trustee Act 1956 to vest land registered in the names of retired trustees who refuse to transfer
  2. 2 Whether s47 of the Trustee Act 1956 effected vesting of trust property and the exception for land under the Land Transfer Act 1952
  3. 3 Whether beneficiaries have standing to apply for a vesting order under s67 of the Trustee Act 1956

Ratio Decidendi

The Court exercised its jurisdiction under s52 of the Trustee Act 1956 to make a vesting order because the retiring trustee (Mr White) unreasonably refused to effect a transfer of land that did not vest automatically under s47; beneficiaries had standing under s67; other interested parties including a co-registered retired trustee and the mortgagee consented (the latter subject to protection) so a conditional vesting order was appropriate.

Court Disposition

Vesting order granted under s52 of the Trustee Act 1956; order conditioned on contemporaneous registration of discharge of the registered mortgage; costs awarded to the plaintiffs against the second defendant

Orders

  • Vesting order under s52 Trustee Act 1956: Property in record of title NA92B/149 (Lot 3 DP 154379 being 2.1795 ha more or less and a half share of Lot 4 DP 154379 being 2719 m2 more or less) vested in the first defendants Beverley Ann MacKenzie and Dulcina Ida Subritzky as trustees
  • The vesting order is conditional that, at the time it is lodged for registration, it is accompanied by a discharge of Mortgage No M6137653.4 in favour of ASB Bank Ltd over record of title NA92B/149