Re THE JUDENA FAMILY TRUST [2020] NZHC 2119

Re THE JUDENA FAMILY TRUST [2020] NZHC 2119

Given uncontroverted medical evidence that Peter lacked capacity and had been validly removed under the trust deed, and in the absence of any opposing party or need to protect beneficiaries' interests, the court exercised its discretion under r 19.5 and s 52 Trustee Act 1956 to permit a without‑notice originating...

Source-derived case information.

Citation
[2020] NZHC 2119
Parties
Applicant Trustee: Darrell Bryce Hollinshead; Applicant Trustee: Steven Bruce Thompson; Former Trustee / Respondent: Peter Graham Hollinshead; Trust / Subject of Application: The Judena Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 August 2020
Procedural Posture
Application for Vesting Orders Under Trustee Act 1956 / Application Heard on the Papers; Judgment Granting Orders
Outcome
Application granted in full
Legal Topics
Vesting Orders S52 Trustee Act 1956, Trustee Removal, Dispensing With Service, Originating Application Procedure, Mental Incapacity of Trustee, Land Transfer and Mortgages
Trusts Property Law Civil Procedure Capacity Law Vesting Orders S52 Trustee Act 1956 Trustee Removal Dispensing With Service Originating Application Procedure +2 more

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Parties

Darrell Bryce Hollinshead

Applicant Trustee

Steven Bruce Thompson

Applicant Trustee

Peter Graham Hollinshead

Former Trustee / Respondent

The Judena Family Trust

Trust / Subject of Application

Procedural Posture

Application for Vesting Orders Under Trustee Act 1956 / Application Heard on the Papers; Judgment Granting Orders

Legal Issues

  1. 1 Whether the proceeding could be commenced by way of originating application without notice
  2. 2 Whether service on the incapacitated trustee and on beneficiaries should be dispensed with
  3. 3 Whether s 52 Trustee Act 1956 authorises vesting the trust properties in the continuing trustees

Ratio Decidendi

Given uncontroverted medical evidence that Peter lacked capacity and had been validly removed under the trust deed, and in the absence of any opposing party or need to protect beneficiaries' interests, the court exercised its discretion under r 19.5 and s 52 Trustee Act 1956 to permit a without‑notice originating application, dispense service, and vest the trust properties in the continuing trustees to allow transfer and settlement, subject to existing mortgage consented to by BNZ.

Court Disposition

Application granted in full

Orders

  • Permission granted to commence the proceeding by way of a without‑notice originating application
  • Service on and representation of Peter Graham Hollinshead dispensed with