WAKEFIELDS CORPORATE TRUSTEE LIMITED v LA VIA [2018] NZHC 3448

WAKEFIELDS CORPORATE TRUSTEE LIMITED v LA VIA [2018] NZHC 3448

Medical evidence established that Aniello La Via lacked capacity to act as a trustee; under s43(1) the court removed him as trustee of the A & R La Via Family Trust and, under s43(6), varied the A La Via Family Trust deed to vest appointment powers in Rosalia La Via and vested the Neils Fisheries Ltd shares and specified trust properties in the remaining trustees; leave to proceed by originating application was properly granted and costs were ordered to be paid from the respective trust assets.

Citation
[2018] NZHC 3448
Parties
Applicant Trustee: Wakefields Corporate Trustee Limited; Applicant Trustee: Rosalia La Via; Respondent/retiring Trustee: Aniello La Via
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 December 2018
Procedural Posture
Application Under the Trustee Act 1956 for Variation of Trust Deed, Removal of Trustee and Vesting Orders / Judgment on Originating Application (on the Papers)
Outcome
Orders granted as sought
Legal Topics
Variation of Trust Deed, Vesting Order, Removal of Trustee, Mental Incapacity, Trust Property
Trusts Equity Property Law Elder Law Variation of Trust Deed Vesting Order Removal of Trustee Mental Incapacity +1 more

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Parties

Wakefields Corporate Trustee Limited

Applicant Trustee

Rosalia La Via

Applicant Trustee

Aniello La Via

Respondent/retiring Trustee

Procedural Posture

Application Under the Trustee Act 1956 for Variation of Trust Deed, Removal of Trustee and Vesting Orders / Judgment on Originating Application (on the Papers)

Legal Issues

  1. 1 Whether to vary the A La Via Family Trust deed to transfer powers of appointment
  2. 2 Whether to vest shares in Neils Fisheries Ltd in the remaining trustees
  3. 3 Whether to remove Aniello La Via as trustee of the A & R La Via Family Trust for mental incapacity

Ratio Decidendi

Medical evidence established that Aniello La Via lacked capacity to act as a trustee; under s43(1) the court removed him as trustee of the A & R La Via Family Trust and, under s43(6), varied the A La Via Family Trust deed to vest appointment powers in Rosalia La Via and vested the Neils Fisheries Ltd shares and specified trust properties in the remaining trustees; leave to proceed by originating application was properly granted and costs were ordered to be paid from the respective trust assets.

Court Disposition

Orders granted as sought

Orders

  • Permission granted to the applicants in relation to each Trust to bring this proceeding by way of an originating application
  • In relation to the A La Via Family Trust: the powers in clauses 13 and 14 of the A La Via Family Trust Deed are removed from Aniello La Via and vested in Rosalia La Via