BROOKER v BATES [2023] NZHC 337 [28 February 2023]

BROOKER v BATES [2023] NZHC 337 [28 February 2023]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECIV-2022-476-14[2023] NZHC 337IN THE MATTER of an order for a Vesting Order pursuant tos 112 of the Trusts Act 2019BETWEEN EDITH MARGARET BROOKERApplicantAND SHARON MARGARET BATES (alsoknown as SHARONMARGARET LOCKERBIE-BATES)RespondentsHearing: (On the papers)Counsel: K I McLellan for ApplicantJudgment: 28 February 2023JUDGMENT OF ASSOCIATE JUDGE LESTER[1] Edith Margaret Brooker (Edith) has brought an application which, in itsultimate form, seeks a vesting order in relation to land held in a family trust that Edithsettled, known as the W A T and E M Lockerbie Family Trust (the Trust).[2] The respondent in this proceeding, Sharon Margaret Bates (Sharon), is one ofEdith's daughters and one of the trustees of the Trust.[3] Unfortunately, the relationship between Edith and Sharon has becomeestranged to the point where Edith has had no contact with Sharon for over two years.The last known address that Edith or her wider family had for Sharon was inQueensland, Australia, but that address is no longer current and the wider family hasno forwarding address or contact details for Sharon, nor has a social media searchturned up any contact information for her.[4] The practical issue facing Edith is that she is concerned when she comes to sellthe property as trustee, she will not be able to do so when she has no ability to contactSharon.[5] The Trust Deed has been produced to the Court.[6] Under cl 3.2 of the Trust Deed, the power to appoint new trustees is vested inthe Settlor during her lifetime, that is, in Edith. It follows that Edith has the powerunder the Trust Deed to remove Sharon as trustee.[7] Accordingly, this is not a case where the Court must resort to the powers unders 112 of the Trusts Act 2019 to remove Sharon. It is not difficult or impracticable forEdith to remove Sharon without the assistance of the Court.[8] Edith has produced to the Court a Deed of Removal of Trustee removingSharon as trustee as at 3 February 2023.[9] The Trust owns a property in Oamaru and a copy of the Certificate of Title hasbeen produced to the Court. The Certificate of Title is in the names of Edith, Sharonand Tracy Ellen Donohue (Edith's other daughter).[10] With Sharon having been removed as trustee pursuant to Edith's undoubtedpower to do so, I am content that a vesting order should be made. Edith could haverelied on the powers under the Trusts Act 2019 to obtain a vesting order, but havingcommenced this application some time ago, I consider it appropriate to make a vestingorder to enable Edith to bring this proceeding to a conclusion.Procedural applications[11] Edith seeks leave to use the originating application procedure. I am satisfiedthat procedure is appropriate and leave is given for it to be used. This isa straightforward application where formal pleadings and interlocutory steps are notrequired. In any event, Edith has lost contact with Sharon, as has Edith's wider family,leading Edith to seek an order dispensing with service. I make that order. I dispensewith service as Edith has the power as Settlor (not as trustee) to remove Sharon astrustee. Edith has done that. Further, Sharon has essentially abandoned her role oftrustee. Service would serve no real purpose. I also direct that it is unnecessary forany other party to be served. The amendment to the registered proprietors of the Trustproperty does not impact on the rights of beneficiaries of the Trust. Accordingly, thereis no need for any other party to be served.[12] With Sharon having been removed as trustee, it is now necessary to regularisethe situation with the ownership of the Trust's property. I make an order vestingCertificate of Title OT9C/1420, Otago Registry, in Edith Margaret Brooker and TracyEllen Donohue.[13] No order as to costs is sought and so none is made._______________________________Associate Judge LesterSolicitors:Dean & Coleman Law, Oamaru (for the Applicant)