LIPSCOMBE v LIPSCOMBE [2014] NZHC 3340

LIPSCOMBE v LIPSCOMBE [2014] NZHC 3340

Because the respondent was certified mentally incapable and removed as trustee, there were no other persons interested, the applicant's affidavit complied with High Court Rules, and the statutory criteria under s 52 Trustee Act 1956 were met to enable completion of the contracted sale, the Court was justified in dispensing with service and making the vesting order and ordering costs to be met from the trust funds.

Citation
[2014] NZHC 3340
Parties
Plaintiff/trustee: Anthony James Lipscombe; Plaintiff/trustee: Anne Genevieve Lipscombe; Defendant/trustee: Ross Anthony Lipscombe
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 December 2014
Procedural Posture
Application for Vesting of Land Under Part 18 High Court Rules and S 52 Trustee Act 1956 / Without Notice Application Dealt With on the Papers
Outcome
Application granted
Legal Topics
Vesting Order Under S 52 Trustee Act 1956, Dispensing With Service, Removal of Trustee Due to Incapacity, Costs Payable From Trust Funds, Affidavit Compliance With High Court Rules
Trusts Property Law Civil Procedure Mental Capacity Vesting Order Under S 52 Trustee Act 1956 Dispensing With Service Removal of Trustee Due to Incapacity Costs Payable From Trust Funds +1 more

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Parties

Anthony James Lipscombe

Plaintiff/trustee

Anne Genevieve Lipscombe

Plaintiff/trustee

Ross Anthony Lipscombe

Defendant/trustee

Procedural Posture

Application for Vesting of Land Under Part 18 High Court Rules and S 52 Trustee Act 1956 / Without Notice Application Dealt With on the Papers

Legal Issues

  1. 1 Whether service could be dispensed with for a without‑notice vesting application
  2. 2 Whether a vesting order under s 52 Trustee Act 1956 should be made to enable a sale to settle
  3. 3 Effect of a trustee being certified mentally incapable on the application

Ratio Decidendi

Because the respondent was certified mentally incapable and removed as trustee, there were no other persons interested, the applicant's affidavit complied with High Court Rules, and the statutory criteria under s 52 Trustee Act 1956 were met to enable completion of the contracted sale, the Court was justified in dispensing with service and making the vesting order and ordering costs to be met from the trust funds.

Court Disposition

Application granted

Orders

  • Service dispensed for this application and all documents filed in the proceeding
  • The application and relief sought by the statement of claim to be dealt with on the basis of the applicants' evidence and on the papers