RE THE 899 TRUST AND THE A B MITCHELL NO 3 FAMILY TRUST [2020] NZHC 260

RE THE 899 TRUST AND THE A B MITCHELL NO 3 FAMILY TRUST [2020] NZHC 260

Permission was granted to commence by originating application and service was dispensed with because beneficiaries consented and medical evidence established Brooke (Snr) lacked capacity so service would serve no useful purpose; accordingly the Court vested the trusts' realty in the continuing trustees to give effect to valid trustee removals under the Trustee Act 1956 and the Court's inherent jurisdiction.

Citation
[2020] NZHC 260
Parties
Applicant and Continuing Trustee (899 Trust and a B Mitchell No 3 Family Trust): Fleur Nina Mitchell; Applicant and Continuing Trustee (899 Trust and a B Mitchell No 3 Family Trust): Allan Brooke Mitchell (Jnr); Removed Trustee and Beneficiary (alleged Incapacitated): Allan Brooke (Brooke) Mitchell (Snr); Former Trustee (deceased): Alan Graham Towers; Former Trustee: Kendall Wakeman Trustee Services Ltd; Beneficiaries of the 899 Trust and the Remuera Trust: Beneficiaries (collective)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 February 2020
Procedural Posture
Application Under Trustee Act 1956 and Inherent Jurisdiction for Vesting Orders / Application for Vesting Orders Commenced by Without‑notice Originating Application on the Papers
Outcome
Application granted: permission to commence by without‑notice originating application; service on beneficiaries and Brooke (Snr) dispensed with; vesting orders granted; costs to be paid from respective trust funds.
Legal Topics
Vesting Orders, Trustee Removal, Service Dispensation, Mental Capacity, Trust Administration, Costs
Trusts Equity Civil Procedure Property Law Capacity Law Vesting Orders Trustee Removal Service Dispensation +3 more

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Parties

Fleur Nina Mitchell

Applicant and Continuing Trustee (899 Trust and a B Mitchell No 3 Family Trust)

Allan Brooke Mitchell (Jnr)

Applicant and Continuing Trustee (899 Trust and a B Mitchell No 3 Family Trust)

Allan Brooke (Brooke) Mitchell (Snr)

Removed Trustee and Beneficiary (alleged Incapacitated)

Alan Graham Towers

Former Trustee (deceased)

Kendall Wakeman Trustee Services Ltd

Former Trustee

Beneficiaries (collective)

Beneficiaries of the 899 Trust and the Remuera Trust

Procedural Posture

Application Under Trustee Act 1956 and Inherent Jurisdiction for Vesting Orders / Application for Vesting Orders Commenced by Without‑notice Originating Application on the Papers

Legal Issues

  1. 1 Whether the proceeding may be commenced by way of originating application
  2. 2 Whether service on beneficiaries and a removed trustee who lacks capacity can be dispensed with
  3. 3 Whether the realty assets of the two trusts should be vested in the continuing trustees to give effect to trustee removals

Ratio Decidendi

Permission was granted to commence by originating application and service was dispensed with because beneficiaries consented and medical evidence established Brooke (Snr) lacked capacity so service would serve no useful purpose; accordingly the Court vested the trusts' realty in the continuing trustees to give effect to valid trustee removals under the Trustee Act 1956 and the Court's inherent jurisdiction.

Court Disposition

Application granted: permission to commence by without‑notice originating application; service on beneficiaries and Brooke (Snr) dispensed with; vesting orders granted; costs to be paid from respective trust funds.

Orders

  • The applicants may commence this proceeding by way of a without‑notice originating application
  • Service of the proceedings on the beneficiaries of the 899 Trust and the Remuera Trust is not required