COLLINS v COLLINS [2020] NZHC 1890

COLLINS v COLLINS [2020] NZHC 1890

Because the respondent was validly removed as trustee and the continuing trustees must be able to deal with trust assets, the Court, exercising its statutory power under s52 Trustee Act 1956 and applying Part 19 procedure as appropriate, will vest the Banks Peninsula property in the continuing trustees; service and appointment of a litigation guardian were dispensed with because the respondent is incapacitated, there is no opposition and the application is administrative in nature.

Citation
[2020] NZHC 1890
Parties
Applicant Trustee: Graham John Collins; Applicant Trustee: Christopher Charles Collins; Applicant Trustee: David William Collins; Applicant Trustee: Frances Awhina Dando; Respondent Former Trustee: Jennifer Ruth Collins
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2020
Procedural Posture
Application for Vesting Order Under Trustee Act 1956 / Determined on the Papers; Judgment Delivered 31 July 2020
Outcome
Application granted in full: leave to commence under Part 19; service dispensed; no litigation guardian appointed; land vested in applicants under s52 Trustee Act 1956
Legal Topics
Vesting Order Under S52 Trustee Act 1956, Removal of Trustee, Part 19 High Court Rules Originating Application Procedure, Requirement for Litigation Guardian for Incapacitated Persons, Dispensing With Service
Trusts Property Law Civil Procedure Incapacity Law Vesting Order Under S52 Trustee Act 1956 Removal of Trustee Part 19 High Court Rules Originating Application Procedure Requirement for Litigation Guardian for Incapacitated Persons +1 more

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Parties

Graham John Collins

Applicant Trustee

Christopher Charles Collins

Applicant Trustee

David William Collins

Applicant Trustee

Frances Awhina Dando

Applicant Trustee

Jennifer Ruth Collins

Respondent Former Trustee

Procedural Posture

Application for Vesting Order Under Trustee Act 1956 / Determined on the Papers; Judgment Delivered 31 July 2020

Legal Issues

  1. 1 Whether the respondent was validly removed as trustee
  2. 2 Whether the Court should vest the trust land in the continuing trustees under s52 Trustee Act 1956
  3. 3 Whether the proceeding could be brought under Part 19 by originating application

Ratio Decidendi

Because the respondent was validly removed as trustee and the continuing trustees must be able to deal with trust assets, the Court, exercising its statutory power under s52 Trustee Act 1956 and applying Part 19 procedure as appropriate, will vest the Banks Peninsula property in the continuing trustees; service and appointment of a litigation guardian were dispensed with because the respondent is incapacitated, there is no opposition and the application is administrative in nature.

Court Disposition

Application granted in full: leave to commence under Part 19; service dispensed; no litigation guardian appointed; land vested in applicants under s52 Trustee Act 1956

Orders

  • Proceeding may be commenced by originating application under Part 19 High Court Rules 2016
  • Service of the proceeding on any person is dispensed with