Harrington v Foreman [2017] NZHC 253

Harrington v Foreman [2017] NZHC 253

Given the respondent’s dementia and removal as trustee, the absence of any interest in the trust assets, the consent of beneficiaries and non‑opposition from the appointed property manager, it was necessary and appropriate to vest the respondent's interests in the co‑trustees to enable trustees to deal with the properties; leave to proceed by originating application and dispensing with further service were justified.

Citation
[2017] NZHC 253
Parties
Applicant: Diana Harrington; Respondent (trustee of the Picasso Trust): James William Ferguson Foreman
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 February 2017
Procedural Posture
S52 Trustee Act 1956 Vesting Application / Judgment on Application (vesting Order)
Outcome
Application granted: leave to commence by originating application; further service dispensed; vesting order made.
Legal Topics
Vesting Order, Dispensing With Service, Trustee Incapacity, Transfer of Land
Trusts Property Capacity/mental Incapacity Vesting Order Dispensing With Service Trustee Incapacity Transfer of Land

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Parties

Diana Harrington

Applicant

James William Ferguson Foreman

Respondent (trustee of the Picasso Trust)

Procedural Posture

S52 Trustee Act 1956 Vesting Application / Judgment on Application (vesting Order)

Legal Issues

  1. 1 Whether a vesting order under s52 of the Trustee Act 1956 should be made to enable trustees to deal with trust property
  2. 2 Whether further service on the respondent and other interested persons should be dispensed with
  3. 3 Whether the respondent's mental incapacity justifies the orders sought

Ratio Decidendi

Given the respondent’s dementia and removal as trustee, the absence of any interest in the trust assets, the consent of beneficiaries and non‑opposition from the appointed property manager, it was necessary and appropriate to vest the respondent's interests in the co‑trustees to enable trustees to deal with the properties; leave to proceed by originating application and dispensing with further service were justified.

Court Disposition

Application granted: leave to commence by originating application; further service dispensed; vesting order made.

Orders

  • Applicant granted leave to bring the proceeding by way of originating application under Part 19 of the High Court Rules.
  • Further service of the proceeding on the respondent and other interested persons is dispensed with.