Wakefields Corporate Trustee Limited v La Via [2018] NZHC 3448 (20 December 2018)

Last Updated: 7 January 2019

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-966 [2018] NZHC 3448

UNDER	Sections 43 and 52 of the Trustee Act 1956
AND In the matter of an application by	WAKEFIELDS CORPORATE TRUSTEE LIMITED, a company having its registered office at Level 2, Zephyr House, 82 Willis Street, Wellington, and ROSALIA LA VIA of Wellington, Retired, as trustees of the A La Via Family Trust for variation of Trust Deed and vesting order
AND In the matter of an application by	ROSALIA LA VIA of Wellington, Retired, and WAKEFIELDS CORPORATE TRUSTEE LIMITED as trustees of the A & R La Via Family Trust for removal of a trustee and consequent vesting orders

Hearing:	on the papers
Counsel:	M J Leggat for Applicants
Judgment:	20 December 2018

JUDGMENT OF CULL J

[1] The applicants, Wakefields Corporate Trustee Ltd and Rosalia La Via, are trustees of two trusts, namely:

(a) A La Via Family Trust; and

WAKEFIELDS CORPORATE TRUSTEE LIMITED v LA VIA [2018] NZHC 3448 [20 December 2018]

(b) A & R La Via Family Trust.

[2] In respect of the A La Via Family Trust, the trustees seek a variation of the Trust Deed, namely removing from the retiring trustee, Aniello La Via, his powers of appointment under cls 13 and 14 of the A La Via Family Trust deed, and vesting those express powers of appointment in his wife, Rosalia La Via. There is power for this Court to do so under s 43(6) of the Trustee Act 1956. The trustees also seek the vesting in the current applicant trustees of all the shares in Neils Fisheries Ltd.

[3] In respect of the A & R La Via Family Trust, the applicant trustees are applying for orders removing Aniello as a trustee of the Trust, because of his mental incapacity. They seek a vesting order of the three trust properties in the trustees.

[4] The grounds on which each of the above orders are sought are detailed in the originating application. The principal ground for seeking the orders is that Aniello is under a disability and is no longer capable of performing his role of trustee. Aniello has ceased to be a trustee of the A La Via Family Trust, having been removed by a deed dated 14 December 2018, pursuant to s 43(1) of the Trustee Act.

[5] The reason for the orders sought in relation to the A La Via Family Trust is to ensure the express powers of appointment and removal of trustees under cls 13 and 14 of the A La Via Family Trust deed are vested in his wife, Rosalia La Via. The shareholding in Neils Fisheries Ltd is an asset of the A La Via Family Trust and the current trustee applicants seek to have the shareholding in Neils Fisheries Ltd vested in them.

[6] The second set of orders relate to the A & R La Via Family Trust. Aniello is a trustee of the A & R La Via Family Trust but, given his lack of mental capacity and disability, he is no longer capable of fulfilling the role as a trustee of the Trust.

[7] The current two trustees consider there is no need for a replacement third trustee to be appointed in place of Aniello, whom they seek to be removed as a trustee. They also seek vesting orders of the following properties of the Trust in them:

• (a) 14 – 16 Allen Street, Te Aro, Wellington, being legally described as Lot 3 DP 1302 (and being comprised in record of title WN5B/419;

(b) 298 Oriental Parade, Oriental Bay, Wellington, being legally described as Part Lots 7 & 8 DP 653 (and being comprised in record of title WN388/91;

(c) 6 – 14 Russo Terrace, Rona Bay, Eastbourne, Lower Hutt, being legally described as:

(i) Lot 10 DP 8087 (and being comprised in record of title WN549/242)

(ii) Lot 11 DP 8087 (and being comprised in record of title WN530/1)

(iii) Lot 7 DP 19662 (and being comprised in record of title WN806/62)

(iv) Lot 9 DP 8087 (and being comprised in record of title WN556/214)

(v) Lot 6 DP 19662 and Part Application Plan 3309 (and being comprised in record of title WN798/61.

[8] The evidence filed in support of the applications is by way of an affidavit of Dr William Hsin-Chieh Huang, a medical practitioner of Paraparaumu. He has given evidence that for the past four years he has been employed by Waikanae Health and in the course of that employment, he visits Millvale Lodge, Lindale, where Aniello now resides. Aniello is in a dementia care rest home and Dr Huang has certified that Aniello suffers from significant vascular dementia. His cognition and short-term memory is very poor and he requires help with most basic daily tasks of living. He has limited communication skills and his condition is not reversible.
[9] Dr Huang reports that over the four years he has been treating Aniello, his dementia has shown no sign of improvement and, in his view and experience, is likely to become progressively more severe. Dr Huang also certifies that Aniello is not capable of making reasoned decisions in relation to property or other commercial interests and would be unable to carry out the role of trustee of a trust, involving decisions in relation to such assets. Dr Huang also considers that Aniello is not capable of comprehending the import and effect of Court proceedings or making any response to them, and he considers Aniello may find service of Court documents distressing.

[10] I have considered the evidence of Dr Huang, the affidavit of Mr Griffin, the family solicitor, and having perused the 15 October 2017 report of Dr Bernard Leuthart of Waiwhetu Medical Centre, who confirms that Aniello suffers significant cognitive and physical decline and is unable to comprehend legal proceedings. I am satisfied that the applicants should be granted leave to bring this proceeding by way of an originating application and the orders sought in relation to each of the A La Via Family Trust and the A & R La Via Family Trust should be granted.

[11] The orders of this Court on the originating application are made accordingly, as follows:

(a) Permission is granted to the applicants in relation to each Trust to bring this proceeding by way of an originating application.

(b) In relation to the A La Via Family Trust:

(i) The powers in cls 13 and 14 of the A La Via Family Trust Deed be removed from Aniello La Via and be vested in Rosalia La Via;

(ii) Vesting in Wakefields Corporate Trustees Ltd and Rosalia La Via all the shares in Neils Fisheries Ltd (37982) which are, or should be, currently lawfully recorded in that company’s share register as jointly held in the names of Aniello La Via and John Clayton Meo; and
(iii) The costs of and incidental to this Application as it relates to this Trust be paid out of the assets of the A La Via Family Trust.

(c) In relation to the A & R La Via Family Trust:

(i) Aniello La Via be removed as a trustee of the Trust; and

(ii) Vesting the following properties in Wakefields Corporate Trustees Limited and Rosalia La Via:

1. Lot 3 DP 1302 (and being comprised in record of title WN5B/419);

2. Part Lots 7 & 8 DP 653 (and being comprised in record of title WN388/91);

100. Lot 10 DP 8087 (and being comprised in record of title WN549/242);

4. Lot 11 DP 8087 (and being comprised in record of title WN530/1);

5. Lot 7 DP 19662 (and being comprised in record of title WN806/62);

6. Lot 9 DP 8087 (and being comprised in record of title WN556/214);

7. Lot 6 DP 19662 and Part Application Plan 3309 (and being comprised in record of title WN798/61); and

(iii) The costs of and incidental to this Application as it relates to this Trust be paid out of the assets of the A & R La Via Family Trust.
[12] I record that Aniello’s wife, Rosalia La Via, who is an applicant trustee of both trusts, has filed an affidavit, confirming that her husband has been deteriorating mentally and physically over the past two years. Rosalia was appointed a trustee, in place of Aniello, of the A La Via Family Trust. She believes that Aniello always intended her to be a trustee of the A La Via Family Trust, if he were unable to act as a trustee. She has spoken to both their children, who are beneficiaries of both Trusts, and they support this application.

Cull J