IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE	
CIV-2020-412-38
[2020] NZHC 1295	

UNDER	the Trustee Act 1956	
AND		
IN THE MATTER	of the R L WHITE FAMILY TRUST	
BETWEEN	ANDREW PETER WHITE
Applicant	
AND	RUBY LORRAINE WHITE and WENDY
JOY BLACKIE, as trustees of the R L White Family Trust
Respondents	

Hearing:	On the papers	
Counsel:	J C D Guest	
Interim Judgment:	11 June 2020	

INTERIM JUDGMENT OF ASSOCIATE JUDGE LESTER

This Interim judgment was delivered by me on 11 June 2020 at 12.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 11 June 2020

WHITE v WHITE [2020] NZHC 1295 [11 June 2020].

[1]	The applicant, Andrew Peter White (Andrew), seeks the following orders:

(a)	leave to bring this application by way of an originating application;

(b)	dispensing with service;

(c)	dispensing with the need for Ruby Lorraine White to have a litigation guardian;

(d)	removing Ruby Lorraine White as a trustee of the R L White Family Trust, and that the applicant replace her as trustee; and

(e)	a vesting order under s 52 of the Trustee Act 1956.

Background

[2]	Ruby Lorraine White (Ruby) was the Settlor of the R L White Family Trust (the Trust). The original trustees were Ruby’s late husband, William Earl White (William), who died some years ago and Ruby and William’s daughter, Wendy Joy White (now Wendy Joy Blackie) (Wendy). Ruby had three children; Andrew, Wendy and Philip Wayne White (Philip). Wendy and Philip have filed affidavits supporting the present application.

[3]	The asset in the Trust is a property at 32c Frances Street, Balclutha, which was the home of Ruby and William.

[4]	Andrew explains, in his affidavit in support of the application, that Ruby is 86 years old and he says Ruby is not able to look after her own affairs. Ruby no longer lives at 32c Frances Street, Balclutha and is now in care.

[5]	But for one factor, I am satisfied that the various orders sought should be made. That factor relates to the medical evidence concerning Ruby. The only medical evidence provided is from Ruby’s general practitioner dated 31 October 2017. That letter refers to Ruby being in the Dunedin Public Hospital in July 2017 and there was

reference to a Dr McLaughlin at the hospital considering that Ruby did have capacity to make decisions as at 20 July 2017.

[6]	The letter dated 31 October 2017 from Ruby’s medical practitioner, Dr Cook, concludes by saying:

My feeling is that Lorraine [Ruby] is not able to make a decision on her health care. She is not able to decide where she wants to live…

… she is now not competent to make judgments about where she lives or her health.

[7]	While the three children, who are the only beneficiaries of the Trust, consent to the application, before I can make the orders sought, I have to be satisfied that Ruby lacks capacity to manage the Trust and that her mental state is unlikely to improve in the near future. Given the age of Dr Cook’s letter and given that only a few months before it was written, Dr McLaughlin considered Ruby did have capacity to make decisions, I am not satisfied that I have adequate evidence that Ruby lacks capacity. What follows assumes that evidence is available, and I address at the conclusion of this interim judgment, the steps I propose take place in respect of this application and the provision of further evidence.

Use of originating application

[8]	Applications to remove incapacitated trustees and for vesting orders are now routinely made by way of originating application. Such applications have been characterised as administrative in nature, and that is often the case. In straightforward uncontested applications, it is appropriate that a cost-effective and efficient practical procedure be adopted. Assuming the medical evidence I have referred to is available, then there will be no reason to refuse leave for the use of the originating application procedure.

Litigation guardian

[9]	As Ruby is incapacitated, r 4.30 of the High Court Rules 2016, requires Ruby to have a litigation guardian unless the Court decides otherwise.

[10]	Again, on the basis it can be established that Ruby lacks capacity, it will not be necessary to appoint a litigation guardian. Such would serve no real purpose.

[11]	Accordingly, I anticipate no difficulty in due course making an order dispensing with the appointment of a litigation guardian.

Service

[12]	Similarly, there is no need for any other party to be served. Ruby’s children, who are the only beneficiaries of the Trust, all consent to the application.

[13]	Accordingly, and on the assumption I have expressed in relation to the other orders, I see no difficulty in due course making an order dispensing with the need for the application to be served.

Removal as trustee

[14]	Section 51 of the Trustee Act 1956 (the Act) provides:

(1)  The court may,  whenever it is expedient to appoint a new trustee or   new trustees, and it is found inexpedient, difficult, or impracticable so to do without the assistance of the court, make an order appointing   a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

[15]	The terms of the Deed of Trust do not offer any opportunity to appoint new trustees; that power being vested in Ruby as Settlor of the Trust. Assuming that the further medical evidence confirms Ruby’s lack of capacity, then she would be unable to exercise the power of appointment, or indeed, resign.

[16]	Accordingly, I anticipate it will be appropriate in due course to make an order removing Ruby as trustee under s 51 of the Act and appointing the applicant as trustee in her place.

Vesting order

[17]	Assuming the preceding orders are made, it will follow that a vesting order in respect of the property at 32c Frances Street, Balclutha can be made to vest the property in the names of the trustees, Andrew Peter White and Wendy Joy Blackie.

Conclusion

[18]	It that I consider the application to be appropriate, save for the need for the updating medical evidence.

[19]	I invite Andrew’s counsel to file an updating letter from a medical practitioner in respect of Ruby’s mental capacity and at the same time to file draft orders reflecting the orders that will be made upon Ruby’s lack of capacity being made. Assuming the medical evidence is as I anticipate, and upon being satisfied that Ruby lacks capacity, I will be able to make the orders sought and approve the order for sealing.

Associate Judge Lester

Solicitors:
Downie Stewart, Dunedin