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High Court of New Zealand Decisions |
Last Updated: 2 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-3256 [2014] NZHC 3340
UNDER
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Part 18 of the High Court Rules and s 52
of the Trustee Act 1956
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IN THE MATTER
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of an application for vesting of land in remaining trustees
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BETWEEN
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ANTHONY JAMES LIPSCOMBE AND ANNE GENEVIEVE LIPSCOMBE Plaintiffs
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AND
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ROSS ANTHONY LIPSCOMBE Defendant
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Hearing:
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On the papers
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Counsel:
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T J Herbert for Applicant
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Judgment:
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19 December 2014
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JUDGMENT OF ASHER J
This judgment was delivered by me on Friday, 19 December 2014 at 3pm
pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Ulrich Milne Lawyers, Auckland.
TJ Herbett, Auckland.
LIPSCOMBE v LIPSCOMBE [2014] NZHC 3340 [19 December 2014]
[1] This is a without notice application for orders that:
(a) the service on the respondent of this application and all
other documents filed in the proceeding by the applicants
be dispensed
with;
(b) this application and the relief sought by the statement of claim be
dealt with on the basis of the applicants’ evidence
in this application,
being the affidavit of Anthony James Lipscombe, and on the papers before the
Court; and
(c) the costs of this application be met from the funds of the
Trust.
[2] The applicants, Anthony James Lipscombe and Ann Genevieve
Lipscombe, who are the trustees of the Lipscombe Family Trust,
seek orders
that:
(a) an order that the property described as an estate in fee simple in
respect of Lot 19 Deposited Plan 61576, being the interest
described in
Certificate of Title NZ18A/218 North Auckland Land Registration District be
vested in Anthony James Lipscombe and Anne
Genevieve Lipscombe, the plaintiffs;
and
(b) an order that the costs of this proceeding be met from the funds of
the
Trust.
[3] When the Trust was established it had three trustees, the
applicants and the respondent, Ross Anthony Lipscombe. Sadly,
Mr R A Lipscombe
has subsequently been certified as mentally incapable for the purposes of the
Protection of Personal and Property
Rights Act 1988. He suffers from dementia.
He has been removed as a trustee by Ann Genevieve Lipscombe, who came to hold
the power
of appointment for the Trust as a result of Mr R A Lipscombe’s
incapacity. Mr R A Lipscombe is the father of A J Lipscombe
and the husband of
Ms A G Lipscombe.
[4] There is a property at 28 Fairway Drive, Mt Roskill Auckland, which is one of the assets of the Trust. It is currently registered in the names of A J, G L and
R A Lipscombe. Subsequent to the removal of R A Lipscombe, A J
and
A G Lipscombe have agreed to sell the property.
[5] In order to effect the sale which is due to settle on 12 February
2015, they require a vesting order under s 52 of the Trustee
Act 1956,
transferring the title into their names only.
[6] I am satisfied that this is an appropriate case for service to be
dispensed with. I accept that there are no other persons
interested in the
outcome and I am in a position to deal with the application on the
papers.
[7] I am also satisfied that this application and the relief sought can
be dealt with on the basis of A J Lipscombe’s
affidavit and on the papers
before the Court. I record that the affidavit of A J Lipscombe complies with r
18.9 of the High Court
Rules.
[8] I am satisfied that under s 52 of the Trustee Act 1956, it is
appropriate to make an order in terms of paragraph (a) in
the prayer for relief
in the statement of claim, and for the order for costs at (b).
Result
[9] There will be orders in accordance with [1] and [8]
above.
...................................
Asher J
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URL: http://www.nzlii.org/nz/cases/NZHC/2014/3340.html