NEEDHAM & ANOR v MCKEE [2015] NZHC 2743

NEEDHAM & ANOR v MCKEE [2015] NZHC 2743 [6 November 2015]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYCIV-2015-419-000341[2015] NZHC 2743BETWEEN RODNEY ARTHUR NEEDHAM ANDDAVID STEWART LEE AS TRUSTEESOF THE BARBARA MCKEE FAMILYTRUSTApplicantsAND BARBARA CATHERINE AGNESMCKEERespondentHearing: (On the papers)Counsel: Jacqui Owen for the ApplicantsNo appearance by the RespondentJudgment: 6 November 2015JUDGMENT OF MOORE JThis judgment was delivered by me on 6 November 2015 at 2:00pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:[1] The applicants who are trustees of the Barbara McKee Family Trust ("the Trust") seek the following orders:(a) leave to commence proceedings by way of an originating application under r 19.5 of the High Court Rules; and(b) an order:(i) dispensing with service of the originating application under rr 19.10 and 7.22 of the High Court Rules; or in the alternative(ii) directions as to service of proceedings on an incapacitated person under r 4.40 of the High Court Rules and supporting affidavits.[2] In the circumstances I am satisfied that leave should be given to commencethe proceedings by way of originating application and accordingly I make orders tothat effect in terms of r 19.5 of the High Court Rules.[3] The substantive application seeks an order in terms of s 52(1)(b)(i) of the Trustee Act 1956 vesting certain land held by Barbara McKee as a trustee in the applicants as the continuing/retiring trustees of the Trust.[4] The background is set out below.[5] The respondent, Barbara McKee, and the applicants, Rodney Needham and David Lee hold land at Tauranga and Pauanui Beach as trustees of the Trust.[6] Barbara McKee has been diagnosed with Alzheimer's dementia. In a medical certificate dated 17 June 2015 and exhibited to the affidavits, the certifying doctor reported that she suffers from severe dementia and a CT scan showed atrophy. The doctor observed that Barbara McKee is unable to make decisions regarding any of her financial or legal matters.[7] As a result, she was removed as a trustee of the Trust and replaced by Nancy Perrett by way of a deed dated 15 June 2015.[8] Rodney Needham and David Lee now wish to retire as trustees of the Trust and transfer the land to the new trustees, Nancy Perrett and Suzanne McKee.[9] Due to her incapacity Barbara McKee is unable to execute the necessary documentation to transfer her interest to Rodney Needham and David Lee.[10] The difficulty which Rodney Needham and David Lee face is that due to the requirements of LINZ they are unable to transfer the land without vesting the interest in the land in the retiring/continuing trustees.[11] It is for this reason they seek an order vesting the land in the names of themselves as retiring/continuing trustees.[12] The present factual position is on all fours with the factual matrix which confronted Heath J in Kohn v Kohn.1 As was Heath J in Kohn, I can see no basis on which a substantive order should be refused and am prepared to deal with it on the papers.[13] In the circumstances I am satisfied that it is appropriate to make the orderssought and, accordingly the following orders are made:(a) an order dispensing service of the proceedings on the respondent due to her incapacity;(b) the granting of a vesting order under s 52(1)(b)(i) of the Trustee Act 1956 vesting the land contained in the Certificates of Title SA41C/967 and SA64C/220 situated at 225A Ngatai Road, Tauranga and 16A Monarch Grove, Pauanui Beach in the applicants as the continuing trustees.1 Kohn v Kohn [2014] NZHC 1154.[14] Leave is reserved to seek such further or other orders as may be necessary to give effect to the judgment.Moore JSolicitors:Allen Needham & Co Limited, Morrinsville