Kohn v Kohn [2014] NZHC 1154 (28 May 2014)

Last Updated: 29 May 2014

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

CIV 2014-416-20 [2014] NZHC 1154

BETWEEN	DION HAMILTON KOHN and JULIAN WILFRED KOHN Plaintiffs
AND	JENNIFER MARIAN KOHN Defendant

Hearing:	(on the papers)
Counsel:	E R Revington for Plaintiffs No appearance by or on behalf of Defendant
Judgment:	28 May 2014

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 28 May 2014 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

_{Registrar/Deputy Registrar}

Solicitors:

_{Woodward Chrisp, Gisborne}

KOHN v KOHN [2014] NZHC 1154 [28 May 2014]

[1] Mr Dion Kohn and Mr Julian Kohn are trustees of the Dion and Jennifer Kohn Family Trust (the Trust). The Trust was established on 18 May 1999. Mr Dion Kohn’s wife, Jennifer, is also a trustee.

[2] There is evidence that Mrs Jennifer Kohn suffers from dementia and that this condition has existed for some time. That evidence is in the form of a report from a consultant psycho-geriatrician attached to Tairawhiti District Health, dated 24

February 2014.

[3] On 30 March 2005, Mrs Jennifer Kohn executed an enduring power of attorney in favour of her husband, in relation to her property. This was done for the purpose of Part IX of the Protection of Personal and Property Rights Act 1988. The power of attorney granted expressly stated that the authority “shall not be revoked if I become mentally incapable”.

_{[4] The trustees of the Trust own a property at 24 Heatherlea Street in Gisborne.}

_{The present proceeding has been issued to obtain a vesting order}¹

_{so that the}

property may be transferred into the names of Messrs Dion and Julian Kohn, together with Ms Sarah Deighton and Ms Joanna Ebbett. Ms Deighton and Ms

_{Ebbett are Mr and Mrs Kohn’s daughters.}

[5] Mrs Jennifer Kohn was removed as a trustee and replaced by Ms Deighton and Ms Ebbett, through the remaining trustees exercising powers conferred by s 43(1) of the Trustee Act 1956. That was done because Mrs Jennifer Kohn was

_{unfit to act as a trustee, by virtue of her medical condition.}

[6] The purpose of the vesting order is to regularise the position so that all present trustees are shown as the registered proprietors. The District Land Registrar will not accept the use of the power of attorney and the existing Deed of Removal and Appointment of New Trustees to facilitate that transfer.

[7] In form, the application before me is for directions as to service; to dispense with the need to serve Mrs Jennifer Kohn. I am satisfied that such an order should

¹ Trustee Act 1956, s 52(1)(h).

be made. Once made, I can see no basis on which a substantive order should be refused. For that reason, I propose to deal with the substantive proceeding now.

[8] I am satisfied that an order should be made vesting the property at 24

Heatherlea Street, Gisborne (Lot 1 DP 7071 GS4D/1204 Gisborne Registry) in the names of Dion Hamilton Kohn, Julian Wilfred Kohn, Sarah Louise Deighton and Joanna Frances Ebbett. Although this will not be shown on the register, the vesting order is made on the basis that they are to hold the property as trustees for the Trust.

[9] For those reasons, I make an order dispensing with service on Mrs Jennifer

Kohn and make a vesting order in the terms set out in para [8] above.

_{[10] All costs in relation to the application shall be paid out of the Trust’s funds.}

_{P R Heath J}

Delivered at 4.00pm on 28 May 2014