HING v HING [2018] NZHC 2315
Because Linda lacks capacity and the applicants possess authority under enduring powers of attorney and the trust deed to remove and appoint trustees, it was proper under s 52 Trustee Act 1956 and the High Court Rules to vest the trust property in the continuing trustee and the applicants, grant leave to apply and...
Source-derived case information.
- Citation
- [2018] NZHC 2315
- Parties
- Applicant: Michelle Ashley Hing; Applicant: Sarah Jane Hing; Respondent: Linda Christine Hing (as trustee of the Linda Hing Family Trust)
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 4 September 2018
- Procedural Posture
- Application to Vest Land in Trustees Under S 52 Trustee Act 1956 and Part 19 High Court Rules / Decided on the Papers; Final Orders Made
- Outcome
- Application granted; final orders made vesting property in the continuing trustee and new trustees, leave granted and service dispensed with; costs to be met by the trust.
- Legal Topics
- Vesting of Trust Property, Trustee Removal and Appointment, Capacity and Enduring Power of Attorney, Dispensing With Service
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michelle Ashley Hing
Applicant
Sarah Jane Hing
Applicant
Linda Christine Hing (as trustee of the Linda Hing Family Trust)
Respondent
Procedural Posture
Application to Vest Land in Trustees Under S 52 Trustee Act 1956 and Part 19 High Court Rules / Decided on the Papers; Final Orders Made
Legal Issues
- 1 Whether leave should be granted to apply for orders vesting trust property in new trustees under s 52 Trustee Act 1956
- 2 Whether Linda should be removed as trustee because of incapacity and replaced by her daughters pursuant to enduring powers of attorney and the trust deed
- 3 Whether service of the proceeding could be dispensed with under the High Court Rules
Ratio Decidendi
Because Linda lacks capacity and the applicants possess authority under enduring powers of attorney and the trust deed to remove and appoint trustees, it was proper under s 52 Trustee Act 1956 and the High Court Rules to vest the trust property in the continuing trustee and the applicants, grant leave to apply and dispense with service so the trustees can deal with the property.
Court Disposition
Application granted; final orders made vesting property in the continuing trustee and new trustees, leave granted and service dispensed with; costs to be met by the trust.
Orders
- Applicants granted leave to apply by originating application under r 19.5 of the High Court Rules 2016.
- Under r 6.8 High Court Rules, service of the proceedings on the respondent or any other person is dispensed with.
Full Case Text
Judgment text and source record
1 paragraphs
HING v HING [2018] NZHC 2315 [4 September 2018]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2018-488-98[2018] NZHC 2315UNDER Part 19 of the High Court RulesAND UNDER Section 52 of the Trustee Act 1956IN THE MATTER of an application to vest land in trusteesBETWEEN MICHELLE ASHLEY HING and SARAHJANE HINGApplicantsAND LINDA CHRISTINE HING as trustee of theLINDA HING FAMILY TRUSTRespondentHearing: On the papersAppearances: VM McGoldrick for ApplicantsJudgment: 4 September 2018JUDGMENT OF TOOGOOD JThis judgment was delivered by me on 4 September 2018 at 4.30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] Linda Christine Hing (Linda) and Northland Trustee (2014) Limited were theoriginal trustees of the Linda Hing Family Trust created by Deed of Trust dated30 January 2014. Through illness, Linda has lost the capacity to manage her ownpersonal affairs. Pursuant to enduring powers of attorney in relation to property,Linda's daughters, Sarah and Michelle, hold the power of appointment and removal oftrustees under the Trust. They propose to exercise those powers to remove Linda as atrustee on the basis of her incapacity and appoint themselves as the replacementtrustees.[2] Sarah and Michelle are the final beneficiaries under the Trust; the discretionarybeneficiaries include their children who are aged between 29 and 11 years.[3] The trust owns a property at 40 Otuhiwai Crescent, Tikipunga, Whangarei(Certificate of Title NA6B/72) which is unencumbered. As Linda is now residing ina rest home, it may be necessary for the trust property to be sold in order to assist withthe cost of her care.[4] For the trustees to be able to deal with the property, it is necessary for Lindabe removed from the title as a registered proprietor and for Sarah and Michelle to besubstituted as registered proprietors with the trustee company.[5] I am satisfied that, in the circumstances it is proper to grant leave to theapplicants to apply for appropriate orders by originating application and to dispensewith service of the proceeding. The Court is in a position to make the final orderssought.[6] Accordingly, I make the following orders:(a) The applicants shall have leave to apply by originating applicationunder r 19.5 of the High Court Rules 2016.(b) Under r 6.8 of the High Court Rules, it is not necessary to serve theproceedings on the respondent or any other person.(c) Pursuant to s 52 of the Trustee Act 1956, the property at 40 OtuhiwaiCrescent, Tikipunga, Whangarei (Certificate of Title NA6B/72) ishereby vested in the continuing trustee Northland Trustee (2014)Limited and the new trustees, Michelle Ashley Hing and Sarah JaneHing.(d) The cost of the application shall be met by the Linda Hing Family Trust......................................................Toogood J