New Zealand Case Law: Decisions & Judgments

Topic

Capacity assessment

Legal area

Court

23 Oct 2020

AKSINYA ENTERPRISES LTD v BHAGIRATH [2020] NZHC 2788

Citation

[2020] NZHC 2788
Court

High Court

Given the medical report confirming the first defendant lacks capacity, the court ordered that no litigation guardian need be appointed for the limited purpose of the removal application and dispensed with service on persons other than the co‑trustees; personal service was ordered on the remaining trustees because removal for incapacity is an established exception to the usual requirement for a litigation guardian and no prejudice to beneficiaries was shown.
20 Dec 2019

BALLANTYNE v GEARY [2019] NZHC 3493

Citation

[2019] NZHC 3493
Court

High Court

Because the respondent lacked capacity to act as trustee and there was evidence he would not understand or participate, the court, pursuant to Trustee Act 1956 ss 51 and 52 and its inherent jurisdiction, properly removed him as trustee, appointed Allan John Geary as replacement trustee and made a vesting order for the trust property, while dispensing with service and with appointment of a litigation guardian.
14 Mar 2018

EMERY v THORN [2018] NZHC 436

Citation

[2018] NZHC 436
Court

High Court

Medical evidence established that Ms Emery lacks the capacity to understand proceedings or give instructions as defined by r 4.29; the Court was satisfied Mr Rice (her solicitor and enduring attorney) can fairly and competently conduct the proceedings, has no adverse interests and consents, therefore appointment under r 4.35 was appropriate.
18 Dec 2008

TRENEARY V TRENEARY AND ORS HC NWP CIV 2008-443-000386

Citation

openlaw-8ed75823_499a_47cd_8e0b_a85a6b39a2d2.pdf
Court

High Court

The High Court held the Family Court erred by conflating property management concerns with the separate statutory inquiry into welfare guardianship under s12, by applying findings about past financial mismanagement as an (irrelevant) determinant of suitability for welfare guardianship and by failing to adequately ascertain and consider the subject's wishes and the evidential basis for welfare findings; therefore the appointment must be remitted for fresh consideration and the interim appointments should continue.
28 Apr 1997

Carroll v Accident Rehabilitation and Compensation Insurance Corporation

Citation

[1997] NZACC 72
Court

District Court

The Court held the Corporation's termination of weekly compensation was contrary to the weight of the evidence because the 1987 accident remained a material cause of the appellant's incapacity; the medical opinion relied on by the Corporation (Mr Phillips) was not clearly determinative and was influenced by a misleading question, so the Corporation lacked adequate evidence to cease payments.

New Zealand Case Law

AKSINYA ENTERPRISES LTD v BHAGIRATH [2020] NZHC 2788

BALLANTYNE v GEARY [2019] NZHC 3493

EMERY v THORN [2018] NZHC 436

TRENEARY V TRENEARY AND ORS HC NWP CIV 2008-443-000386

Carroll v Accident Rehabilitation and Compensation Insurance Corporation