Hunter v Hunter [2018] NZHC 2972 (16 November 2018)

Last Updated: 6 December 2018

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-331 [2018] NZHC 2972

IN THE MATTER	of the Trustee Act 1956
BETWEEN	JOHN RIDLEY FRANCIS HUNTER, MICHAEL WAYNE CRAWFORD and TANYA LOUISE LEA-HUNTER as Trustees of the JRF & A M HUNTER FAMILY TRUST Applicants
AND	ANNE MARY HUNTER Respondent

Hearing:	On the papers
Counsel:	J Naidoo for the Applicants
Judgment:	16 November 2018

JUDGMENT OF MUIR J

This judgment was delivered by me on Friday 16 November 2018 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:...............................

Solicitors:

J Naidoo, Norris Ward McKinnon, Hamilton.

HUNTER v HUNTER [2018] NZHC 2972 [16 November 2018]

Introduction

[1] The applicants, as the current trustees of the JRF & A M Hunter Family Trust (the Trust) seek orders vesting a mortgage held by the Trust over a property at 743A River Road, Hamilton (the Property) in their names. They make an associated application for leave to commence the proceedings by way of originating application and for dispensation of service on the respondent.

Background

[2] The first and second named applicants, together with the respondent were the initial trustees of the Trust. The respondent and the first named applicant were also its settlors.

[3] On 28 February 2017 the respondent retired as a trustee of the Trust and the third named applicant (her daughter) was appointed in her stead. At the time, affidavit evidence confirms that she had mental capacity.

[4] She is, however, now mentally incapable. In a certificate dated 5 November 2018 Dr Andrew Minett certifies that she has:

... corticobasal degeneration with associated dementia. She has insufficient understanding of the material consequences of her action in this regard. This situation is permanent.

[5] The Property has now been sold with settlement to be effected on 22 November 2018. An urgent discharge of the mortgage is required. Because of her mental incapacity the respondent is now unable to sign the authority and instruction form necessary to effect the transfer of the mortgage into the names of the current trustees thereby facilitating discharge of the mortgage and settlement of the sale. As a result, penalty interest is at risk of accruing on the agreement for sale and purchase.

[6] The current trustees accordingly seek an urgent order vesting the Trust mortgage in them and subsequent correction of the Computer Freehold Register through Land Information New Zealand.

Discussion

[7] I am satisfied that the matter is appropriately commenced by way of originating application. What is sought is to bring the registered position into conformity with the identity of the current trustees. The interests of justice do not require the applicants to proceed by way of particularised pleadings.

[8] I am also satisfied, on the basis of the medical evidence, that service on the respondent is appropriately dispensed with. I am satisfied that the interests of the respondent are appropriately protected by the applicants who comprise her husband, daughter and independent trustee Mr Crawford.

[9] As to the substantive application I consider this appropriately granted, again for the reason the mortgage does not currently record the correct names of the trustees and the relief sought brings the registered position into conformity with the deed of retirement and appointment.

Result:

[10] I make the following orders:

(a) Granting leave to commence proceedings by way of originating application.

(b) Dispensing with service on the respondent.

(c) Vesting mortgage number 9856557.3, registered over Computer Freehold Register Identifier 288604, being the property located at 743A River Road, Hamilton in the names of John Ridley Francis Hunter, Michael Wayne Crawford and Tanya Louise Lea-Hunter as trustees of the JRF & A M Hunter Family Trust.

Muir J