WEIR v WEIR [2016] NZHC 1920

WEIR v WEIR [2016] NZHC 1920 [18 August 2016]IN THE HIGH COURT OF NEW ZEALANDBLENHEIM REGISTRYCIV-2016-406-21[2016] NZHC 1920UNDER Section 52 of the Trustee Act 1956BETWEEN JOHN STUART WEIR, ALISTAIR ROSSWEIR AND ROBYN JEANETTE WEIRApplicantsAND STUART WEIRRespondentHearing: On the papersCounsel: G F Kelly for the ApplicantsJudgment: 18 August 2016JUDGMENT OF ELLIS JI direct that the delivery time of this judgment is3 pm on the 18th day of August 2016[1] By Deed dated 30 June 2002 William Hugh Weir settled the Weir Family Trust (the WFT). The original trustees were Stuart Weir, his wife, Margaret Jeanette Dickson Weir and Trevor Leonard Webb. Mr Webb was later replaced by a corporate trustee, Hinton & Associates Trustee Company No. 1 Ltd (Hinton). The final beneficiaries under the WFT are Stuart and Margaret's children, Robyn Jeanette Weir, John Stuart Weir and Alistair Ross Weir. They are the applicants in the present matter.[2] The WFT's main asset is a property at 175 Mills & Ford Road, Rapaura (Identifier 255563).[3] Stuart Weir now suffers from dementia and that this condition has existed for some time. The evidence of this is in the form of a medical certificate from Dr Helen Pike dated 13 March 2016. Stuart Weir's incapacity means that, undercl 12.2 of the Trust deed, he ceases to hold office and no longer has the power to appoint and remove trustees. That power now (by cl 12.4.2) resides solely in Margaret Weir.[4] Stuart Weir is also incapable of executing documents transferring trust property.[5] A Deed dated 13 May 2016 records that:(a) Margaret Weir has removed Stuart Weir as a trustee of the WFT;(b) Margaret Weir and Hinton have retired as trustees of the WFT;(c) Margaret Weir has appointed Robyn Jeanette Weir, John Stuart Weir and Alistair Ross Weir as the new trustees of the WFT;(d) the new trustees have agreed to their appointment.[6] Agreement has also been reached for the sale of the property at 175 Mills & Ford Road. Settlement cannot be effected until the property is vested in the name of the three new trustees. Stuart Weir is not able to authorise transfer because of hisincapacity. Stuart Weir's attorneys under an enduring power of attorney areMargaret Weir and Robyn Weir.[7] The District Land Registrar will not accept the use of the power of attorney and the Deed as a basis for transferring of the 175 Mills & Ford Road property. Accordingly the new trustees have made a without notice originating application to obtain a vesting order so that the property may be transferred into the names of the new trustees. Section 52(1)(a) and (b)(i) of the Trustee Act 1956 are the relevant authorising provisions and there is plentiful authority on their use in circumstances such as the present.[8] The purpose of the vesting order is to regularise the position so that all present trustees are shown as the registered proprietors. I am satisfied that an order should be made vesting the property at 175 Mills & Ford Road in the names of Robyn Jeanette Weir, John Stuart Weir and Alistair Ross Weir. The vesting order is made on the basis that they are to hold the property as trustees for the WFT.[9] I also make an ancillary order dispensing with service of the application on Margaret Jeanette Dickson Weir and Hinton & Associates Trustee Company No 1 Ltd. Both Margaret Weir and Hinton are signatories of the Deed appointing the new Trustees. There can be no question of their opposing the making of the vesting order.[10] Unless the applicants file a memorandum to the contrary within five working days of this judgment there will also be an order that all costs in relation to this application are to be paid out of the WFT's funds."Rebecca Ellis J"Solicitors: Greg Kelly law Limited, Wellington, for Applicants