Estate of Wearn [2019] NZHC 2763 (29 October 2019)

Last Updated: 11 November 2019

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-000533 [2019] NZHC 2763

UNDER	THE TRUSTEE ACT 1956
IN THE MATTER	OF AN APPLICATION FOR ORDERS UNDER SECTION 52 OF THE ACT
BETWEEN	ALLISTER JOHN WEARN AND PATRICK NOEL ROTHERHAM AS TRUSTEES OF THE WEARN FAMILY TRUST Applicants
AND	JOHN STUART WEARN First Respondent ALLISTER JOHN WEARN AND PATRICK NOEL ROTHERHAM AS TRUSTEES OF THE ESTATE OF ELIZABETH JOHANNE WEARN Second Respondents

Hearing:	29 October 2019
Appearances:	H C Carey for Applicants No Appearance for Respondents
Judgment:	29 October 2019

ORAL JUDGMENT OF GENDALL J

RE: ESTATE ELIZABETH JOHANNE WEARN [2019] NZHC 2763 [29 October 2019]

[1] Before the Court is an application by Allister John Wearn and Patrick Noel Rotherham as trustees of the Wearn Family Trust, for orders under s 52 of the Trustee Act 1956. The orders sought are that certain trust properties now be vested in the names of the continuing trustees, Allister John Wearn and Patrick Noel Rotherham. Evidence before this Court indicates that, of the original trustees, the first respondent, John Stuart Wearn, now lacks mental capacity, the third-named second respondent, Elizabeth Johanne Wearn, has now died, and the original third trustee, Frank Dickson, has retired as a trustee.

[2] The present application was the subject of a minute of Associate Judge Paulsen dated 4 October 2019 where he dispensed with service of the proceeding on all parties other than Mr Richard Wearn, the brother of the first-named applicant. An affidavit of service is before the Court indicating that Mr Richard Wearn was appropriately served on 7 October 2019.

[3] The minute of Associate Judge Paulsen indicated that the documents in question were deemed to be served two working days after they were sent to Mr Richard Wearn’s email address. In addition, Mr Richard Wearn was ordered to file any opposition to the application together with affidavits in support by 26 October 2019.

[4] No such opposition to the application from Mr Richard Wearn or any other party is before the Court.

[5] Having considered the application and the supporting affidavits of Patrick Noel Rotherham dated 23 September 2019 and 25 September 2019 and of Allister John Wearn dated 17 September 2019, I am satisfied in terms of s 52 of the Trustee Act 1956 that it is expedient to appoint new trustees and the order sought which is unopposed should now be made. For these reasons the following orders are now made.

[6] An order is made that the Trust properties which are known as:

• (a) 30 Whitewash Head Road, Sumner, Christchurch 8081, being all that parcel of land containing 843 square metres or thereabouts being Lot 1, DP 14731 and Lot 2 DP 348851 comprised and described in Certificate of Title 200594, Canterbury Registry; and

(b) Waitawa Bay, Bay of Many Coves, Queen Charlotte Sound, Marlborough 8888; being all that parcel of land containing 4,108 square metres or thereabouts being Lot 59 DP 1284, comprised and described in Certificate of Title MB48/232 Marlborough Registry

be vested, and they are now vested, in the names of the continuing trustees, Allister John Wearn and Patrick Noel Rotherham.

[7] There is no issue as to costs with respect to this application.





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Gendall J

Solicitors:

Parry Field, Christchurch