Samson v Rogers [2018] NZHC 1575 (28 June 2018)

Last Updated: 9 July 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-927 [2018] NZHC 1575

UNDER	The Trustee Act 1956
BETWEEN	MARGARET NANCY MARY SAMSON as executor of the estate of JOSEPHINE JUDITH WARREN Applicant
AND	ADRIENNE ROSEMARY ROGERS and ANDREW MARK WILMOT SETON as former trustees of the Josephine Warren Family Trust Joint Respondents

Hearing:	On the papers
Counsel:	PM Webb for applicant No appearance by respondents
Judgment:	28 June 2018

JUDGMENT OF FITZGERALD J

[As to vesting order]

This judgment was delivered by me on 28 June 2018 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Denham Bramwell Lawyers, Auckland

Samson v Rogers [2018] NZHC 1575 [28 June 2018]

Introduction

[1] Mrs Josephine Warren settled the Josephine Warren Family Trust (the “Trust”) in October 1996. The only trust property was a property at 216 Henderson Valley Road, Henderson (the “Property”). Between 1996 and Mrs Warren’s death in 2016, the Trust was varied — trustees were substituted and, ultimately, it was resolved that the Property would be transferred to Mrs Warren. But the title to the Property was never changed. Mrs Warren has since passed away. The issue in this case is whether the Court may now authorise a transfer of the Property into the name of Mrs Warren’s executor, and daughter, Ms Samson.

Background

[2] The Trust was settled by Mrs Warren on 21 October 1996. The trustees at that time were Mrs Warren, Ms Adrienne Rogers and Mr Andrew Seton. Mr Seton was a solicitor chosen to be an independent trustee. Ms Rogers is Ms Samson’s daughter. The title to the Property was transferred into the names of the trustees when the Trust was settled.

[3] In 2002, Mrs Warren decided to rearrange her affairs and arranged to wind up the Trust, including distributing the Property back to herself. On 4 December 2002, a deed was executed by Mrs Warren removing Mr Seton and Ms Rogers as trustees. In their place, she appointed Ms Samson and Ms Isabella Dalleston (Ms Samson’s granddaughter).

[4] On the same day, the trustees (Mrs Warren and the two new trustees) signed a resolution affecting the distribution of the whole of the capital of the Trust (that is, the Property) to Mrs Warren. The trustees’ resolution recorded that Mrs Warren had taken no part in that decision.

[5] As noted, however, legal transfer of the Property never occurred. Attempts were made from 2002 to complete the change in title from the former trustees to the new trustees, but several issues were encountered. First, Mr Seton required payment of outstanding invoices to affect the transfer. Second, Ms Rogers could not be contacted to sign the necessary paperwork.
[6] There matters rested. Sadly, Mrs Warren subsequently died on 9 February 2016. Title to the Property is accordingly still held in the names of the original trustees. On 12 October 2016, Mr Seton executed the necessary forms to transfer title in the Property. Ms Rogers still cannot be contacted.

[7] Due to the discovery of a new will that Mrs Warren had executed in 2012, probate was ultimately not granted until 20 April 2018.

[8] Ms Samson’s originating application for a vesting order was filed on 17 May 2018. Mr Seton (and Ms Dalleston) have been duly served. Ms Samson also sought orders for substituted service on Ms Rogers, as her whereabouts continue to remain unknown. On 18 May 2018, Brewer J granted the application for substituted service. In accordance with Brewer J’s orders, advertisements were placed in the Public Notices section of the Rotorua Daily Post (Rotorua being Ms Rogers last known place of residence). The advertisements gave Ms Rogers notice of:

(a) the fact of these proceedings;

(b) the orders sought by Ms Samson; and

(c) from where Ms Rogers could collect copies of all relevant papers.

[9] Neither Mr Seton nor Ms Rogers has taken any part in the present proceeding.

Should a vesting order be made?

[10] Section 52 of the Trustee Act 1956 allows the Court to make a vesting order in relation to land where, relevantly:

(a) A trustee with rights to possess the land cannot be found;¹

¹ Trustee Act 1956, s 52(1)(b)(iii).

(b) Where a trustee has been required to transfer land and has wilfully refused or neglected to convey the land within 28 days of the requirement;² or

(c) Where to do so would be expedient.³

[11] In each case, the Court may make a vesting order in any manner as it directs.

[12] There appear to be good grounds to make a vesting order in relation to the Property. First, equity regards as done that which ought to be done.⁴ The documentary evidence is clear that the original trustees were replaced and the new trustees resolved for the Property to be transferred to Mrs Warren in her personal capacity. The transfer was never affected. In my view, the case falls within s 52(1)(g) — circumstances in which trustees have failed to comply with a requirement within 28 days. Section 52(1)(h) is also in my view applicable, given Ms Rogers cannot now be found and in light of the clear intent on the part of the new trustees to transfer the Property to Mrs Warren.

In whom should the Property vest?

[13] The originating application filed by Ms Samson seeks to have the Property transferred into her name (as executor of her mother’s will). Alternatives might have been a transfer into the new trustees’ names, or into Mrs Warren’s estate. Mr Webb, counsel for Ms Samson, was unable to find authority dealing with a transfer of the Property directly into the name of the executor. Through any approach, Mr Webb submitted, the appropriate outcome would be achieved: the Property would vest in Ms Samson either by order of the Court or operation of law, pursuant to s 24 of the Administration Act 1969. However, in the case of vesting orders in favour of the new trustees or Mrs Warren personally, further vesting orders may be required, given Mrs Warren is no longer alive and thus unable to execute an authority and instruction form to receive title to the Property.

² Section 52(1)(g).

³ Section 52(1)(h).

4. See generally Andrew S Butler “General Concepts” in Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington, 2009) 21 at 33.

[14] Having considered these matters, I am satisfied it is appropriate to make an order vesting the Property in Ms Samson’s name, in her capacity as the executor of Mrs Warren’s estate.

[15] In Re Jackson, Greig J described the way in which title is transferred to an executor under s 24 of the Administration Act 1969:⁵

By s 24 of the Administration Act 1969, upon the grant of administration all the estate then unadministered, whether held beneficially or held in trust, shall vest in the administrator. The title of the administrator relates back to the date of death of the deceased as if there had been no interval of time. The Administration Act proceeds, in s 25, to describe how the estate is to be held by the administrator and by s 26 declares that the whole of the estate shall be assets for the payment of duties, fees, debts and for those purposes the administrator may deal with the assets as described in that section. At common law the executor takes title to the property on the testator's death and his title is derived from the will ...

[16] I am accordingly satisfied that, had the transfer of title into Mrs Warren’s name occurred in 2002 when the resolution of the new trustees was passed, the executor of Mrs Warren’s estate would have been entitled to take title in the Property. As probate has now been granted, I see no reason why Ms Samson should not have title transferred into her name, in her capacity as executor of Mrs Warren’s estate, to be able to deal with the Property in accordance with the terms of Mrs Warren’s will.

[17] I accordingly make an order in terms of paragraph 1(a) of Ms Samson’s originating application dated 16 May 2018, namely that:

The title of the property at 216 Henderson Valley Road, Auckland, legal description Lot 2 Deposited Plan 43997, Identifier NA24A/1013, is vested in the name of Margaret Nancy Mary Samson in her capacity as executor of the estate of Josephine Judith Warren.

[18] There is no order as to costs.




Fitzgerald J

⁵ Re Jackson [1991] 3 NZLR 125 (HC) at 128.