O'NEILL AS TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST V PATRICIA MARGARET MOFFAT TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST HC DUN CIV 2013-412-000157

O'NEILL AS TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST V PATRICIA MARGARET MOFFAT TRUSTEE OF THE P J & P M MOFFAT FAMILY TRUST HC DUN CIV 2013-412-000157 [25 March 2013]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCIV 2013-412-000157[2013] NZHC 510BETWEEN PAUL STAFFORD O'NEILL ASTRUSTEE OF THE P J & P M MOFFATFAMILY TRUSTApplicantAND PATRICIA MARGARET MOFFATTRUSTEE OF THE P J & P M MOFFATFAMILY TRUSTRespondentHearing: (On papers)Counsel: L N Pegg for ApplicantJudgment: 25 March 2013JUDGMENT OF WHATA J[1] This is a without notice application for orders:(a) Substituting a trustee of the P J and P M Moffat Family Trust;(b) Vesting the trust property in the new and remaining trustee.[2] Leave is also sought to bring proceedings by originating application and for directions dispensing with service.[3] The immediate background to this is that the P J and P M Moffat Family Trust was settled by Deed of Trust on 4 July 2001. The trustees of the Trust werePeter James Moffat, Mrs Moffat and Paul Stafford O'Neill.[4] Mr Moffat died on 9 July 2008 and Mrs Moffat has been diagnosed with dementia. The current beneficiaries of the Trust are Mrs Moffat; her children, CraigPeter Moffat and Mark Douglas Patrick Moffat; and Craig Moffat's two minorchildren are contingent beneficiaries if Craig Moffat dies.[5] The current assets of the Trust include:1. 1 Churchill Street, Dunedin (rating value as at 1 July 2010 of $180,000);2. 34 Brunel Street, Dunedin (rating value as at 1 July 2010 of $165,000); and3. Westpac Bank accounts with approximate balance of $40,000.[6] The liabilities of the Trust include mortgages over the Churchill and Brunel Street properties to Westpac New Zealand securing approximately $276,677.[7] Filed with the application is an affidavit of Mark Moffat. He is one of the beneficiaries of the Trust. He says he consents to the appointment and he says that he has been in communication with his brother, Craig Moffat, and that he hasexpressed his consent to Mr Michael O'Neill being appointed as a trustee of theTrust in substitution of his mother. Both have also executed formal consent documentation.1 He also attaches a letter from Dr Arnold confirming that Mrs Moffat suffers from Senile Dementia and lacks capacity.Assessment[8] Section 51(1) and (2)(c) of the Trustee Act 1956 states:51 Power of Court to appoint new trustees(1) The Court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the Court, make an order appointing a new trustee1 There is a written statement of consent executed by Mr Craig Moffat, who is resident inDenmark. It is witnessed by an officer at the Australian Embassy in Copenhagen.or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.(2) In particular and without prejudice to the generality of the foregoing provision, the Court may make an order appointing a new trustee in substitution for a trustee who-...(c) Is a mentally disordered person within the meaning of [the Mental Health (Compulsory Assessment and Treatment) Act 1992, or whose estate or any part thereof is subject to a property order made under the Protection of Personal and Property Rights Act 1988; or...[9] I am satisfied that the orders sought should be granted for the following reasons:(a) Rule 19.5 of the High Court Rules provides an appropriate procedure given the uncontested nature of the application and its relative simplicity;(b) I am satisfied that it is expedient in the circumstances that Mrs Moffat be replaced as a trustee, given her Senile Dementia; and(c) The beneficiaries, apart from Mrs Moffat, consent to Mr MichaelO'Neill being appointed as a trustee.[10] Accordingly, there shall be orders as follows:(a) Removing Mrs Moffat as a trustee and replacing her with Mr MichaelO'Neill; and(b) An order vesting the land at 1 Churchill Street, Dunedin, (Certificate of Title OT67/216) and 34 Brunel Street, Dunedin (Certificate of Title OT277/220) in the new trustee and the remaining trustee.Solicitors:O'Neill Devereux, Dunedin