ANDERSON LLOYD TRUSTEE COMPANY LTD v HOWLES [2020] NZHC 234

ANDERSON LLOYD TRUSTEE COMPANY LTD v HOWLES [2020] NZHC 234

Because Gloria is incapable of performing the duties of trustee and replacement trustees were suitable and consented, it was expedient under s51 and the Court's inherent jurisdiction to remove her, and appropriate under s59 to vest the debt in the applicant and replacement trustees; dispensing with service and a litigation guardian was justified by her incapacity and lack of opposition.

Citation
[2020] NZHC 234
Parties
Applicant (trustee): Anderson Lloyd Trustee Company Limited; Respondent (trustee / Beneficiary): Gloria Margaret Howles
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 February 2020
Procedural Posture
Application Under Trustee Act 1956 to Remove and Replace Trustee and Vest Trust Property / Final Judgment (determined on the Papers)
Outcome
Application granted as to all orders sought: trustee removed, replacement trustees appointed, vesting order made, service and litigation guardian requirements dispensed with.
Legal Topics
Appointment of Trustees, Removal of Trustee, Vesting of Choses in Action, Dispensing With Litigation Guardian, Service Dispensed, Interpretation and Application of Trustee Act 1956 Ss51 and 59
Trusts Equity Civil Procedure Capacity/incapacity Law Appointment of Trustees Removal of Trustee Vesting of Choses in Action Dispensing With Litigation Guardian +2 more

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Parties

Anderson Lloyd Trustee Company Limited

Applicant (trustee)

Gloria Margaret Howles

Respondent (trustee / Beneficiary)

Procedural Posture

Application Under Trustee Act 1956 to Remove and Replace Trustee and Vest Trust Property / Final Judgment (determined on the Papers)

Legal Issues

  1. 1 Whether a trustee suffering from dementia may be removed and replaced under s51 Trustee Act 1956 and the Court’s inherent jurisdiction
  2. 2 Whether a vesting order can be made in respect of a debt (chose in action) and the appropriate statutory power (s59)
  3. 3 Whether the requirement for a litigation guardian under High Court Rules should be dispensed with

Ratio Decidendi

Because Gloria is incapable of performing the duties of trustee and replacement trustees were suitable and consented, it was expedient under s51 and the Court's inherent jurisdiction to remove her, and appropriate under s59 to vest the debt in the applicant and replacement trustees; dispensing with service and a litigation guardian was justified by her incapacity and lack of opposition.

Court Disposition

Application granted as to all orders sought: trustee removed, replacement trustees appointed, vesting order made, service and litigation guardian requirements dispensed with.

Orders

  • Proceeding to be dealt with as an originating application
  • Service of the application is dispensed with