RE HOOPER v [2021] NZHC 576

RE HOOPER v [2021] NZHC 576 [19 March 2021]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2021-409-76[2021] NZHC 576UNDER Section 112 Trusts Act 2019IN THE MATTER of ZURICH OAK TRUSTBETWEEN CORRINA JOANNE HOOPERApplicantANDHearing: (Determined on the papers)Counsel: V A Nichols for the ApplicantJudgment: 19 March 2021JUDGMENT OF ASSOCIATE JUDGE LESTERThis judgment was delivered by me on 19 March 2021 at 4.00 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy Registrar19 March 2021[1] The applicant, Corrina Hooper, seeks leave to use the originating applicationprocedure under pt 19 of the High Court Rules 2016 (the Rules) for the proceeding.[2] Ms Hooper seeks orders that she be removed as trustee of the Zurich Oak Trust(the Trust) pursuant to s 112 of the Trusts Act 2019 (the Act).[3] Leave is required as applications under s 112 of the Act may not be commencedas of right under pt 19. Leave may be granted by the Court under r 19.5 of the Rulesif such is in the interests of justice. The interests of justice mean the Court must securethe just, speedy and inexpensive determination of the proceeding.1[4] This application is brought as Ms Hooper became trustee of the Trust while shewas living with another trustee, Mr Surch. The trustees are Mr Surch anda Mr Dale Wadsworth (also known as Dale Mainwaring), along with Ms Hooper.[5] In 2016, Ms Hooper and Mr Surch separated and a relationship propertyagreement was entered into in mid-2016. The property relationship agreementrecorded that Ms Hooper would resign as trustee and a deed of retirement wasprepared to give effect to this agreement. The agreement was signed by Mr Surch andMs Hooper but has not been signed by Mr Wadsworth, who I am told has refused tosign. In clarifying the position with Ms Nichols (counsel for Ms Hooper), it seemsMr Wadsworth has not responded to requests to sign the deed of retirement, nor hasMr Surch signed the documents required in order to remove Ms Hooper's name fromtitles to properties held by the Trust.[6] Given those circumstances, I am satisfied it is appropriate that leave be givenfor use of the originating application procedure. Counsel's understanding is thatdiscovery and other interlocutory applications appear to be well founded.[7] The remaining trustees have not raised grounds as to why they are notco-operating in completing Ms Hooper's removal. That said, they should be namedas respondents on the proceeding as relief is sought against them.1 Solar Bright Ltd v Martin [2019] NZHC 300 at [18] and [26], citing High Court Rules 2016, r 1.2.[8] I note the originating application for which leave is sought does contemplatethat it will be on notice to Mr Surch and Mr Wadsworth, but they should be named asrespondents on the proceeding. An amended cover sheet for the application is to beprovided.__________________________________Associate Judge LesterSolicitors:Saunders & Co, Christchurch