RE GADDUM [2020] NZHC 2688

RE GADDUM [2020] NZHC 2688

Because the applicants were validly appointed as trustees out of court pursuant to s43 Trustee Act 1956, s52(1)(a) empowers the Court to vest the undivided one‑half share of the subject land in the applicants as trustees; the Court was satisfied the without‑notice procedure, dispensing with service, and hearing on the papers were justified and consequently made the vesting order.

Citation
[2020] NZHC 2688
Parties
Applicant; Trustee of the Estate of Joseph Terrence Dodgshun: Anna Christine Gaddum; Applicant; Trustee of the Estate of Joseph Terrence Dodgshun: Susan Mary Holland; Deceased; Testator (estate Subject to Vesting Order): Joseph Terrence Dodgshun; Deceased; Former Trustee and Executor of Joseph Dodgshun's Estate: June Dodgshun; Former Trustee; Brother of Deceased; Beneficiary; Mentally Incapacitated: Sydney Yorke Dodgshun
Court
High Court
Jurisdiction
New Zealand
Judgment Date
13 October 2020
Procedural Posture
Application for Vesting Order Under Trustee Act 1956 / Without‑notice Originating Application Heard on the Papers; Decision on Application
Outcome
Vesting order granted and procedural relief granted
Legal Topics
Vesting Order Under S52 Trustee Act 1956, Appointment of Trustees Under S43 Trustee Act 1956, Mental Incapacity of Trustee, Without‑notice Procedure/dispensing With Service, Hearing on the Papers
Trusts Succession/probate Equity Civil Procedure Vesting Order Under S52 Trustee Act 1956 Appointment of Trustees Under S43 Trustee Act 1956 Mental Incapacity of Trustee Without‑notice Procedure/dispensing With Service +1 more

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Parties

Anna Christine Gaddum

Applicant; Trustee of the Estate of Joseph Terrence Dodgshun

Susan Mary Holland

Applicant; Trustee of the Estate of Joseph Terrence Dodgshun

Joseph Terrence Dodgshun

Deceased; Testator (estate Subject to Vesting Order)

June Dodgshun

Deceased; Former Trustee and Executor of Joseph Dodgshun's Estate

Sydney Yorke Dodgshun

Former Trustee; Brother of Deceased; Beneficiary; Mentally Incapacitated

Procedural Posture

Application for Vesting Order Under Trustee Act 1956 / Without‑notice Originating Application Heard on the Papers; Decision on Application

Legal Issues

  1. 1 Whether a vesting order under s52(1)(a) can be made where trustees were appointed out of court under s43
  2. 2 Whether the without‑notice procedure and dispensing with service on beneficiaries was justified
  3. 3 Whether the application could properly be determined on the papers

Ratio Decidendi

Because the applicants were validly appointed as trustees out of court pursuant to s43 Trustee Act 1956, s52(1)(a) empowers the Court to vest the undivided one‑half share of the subject land in the applicants as trustees; the Court was satisfied the without‑notice procedure, dispensing with service, and hearing on the papers were justified and consequently made the vesting order.

Court Disposition

Vesting order granted and procedural relief granted

Orders

  • Proceedings commenced by way of without‑notice originating application
  • Service on beneficiaries of the estate dispensed with