ASB Bank Limited v Estate of

[2025] NZHC 2065

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2025-412-067

[2025] NZHC 2065

UNDER

section 357 of the Property Law Act 2007

IN THE MATTER

of an application for an order for substituted service

BETWEEN

ASB BANK LIMITED

Applicant

AND

the Estate of GRAEME KEITH TEMPLETON

Respondent

Hearing:	On the papers
Counsel:	S D C A Gollin for Plaintiff
Judgment:	28 July 2025

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 28 July 2025 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

ASB BANK LIMITED v the Estate of TEMPLETON [2025] NZHC 2065 [28 July 2025]

[1]                 The applicant, ASB Bank Ltd (ASB) seeks orders dispensing with personal service and authorising substituted service of a notice under s 119 of the Property Law Act 2007 (the Act).

[2]                 ASB  entered  into  a  loan  agreement  with   Graeme   Keith   Templeton (Mr Templeton) on 22 May 2019. Mr Templeton was one of three trustees of the Templeton Family Trust who, as co-mortgagors, have granted a mortgage to ASB over a property in Waitati, Dunedin (secured property). The mortgage secures borrowings under the loan agreement. The money and obligations owed by Mr Templeton under the loan agreement are also guaranteed by the trustees of the Templeton Family Trust.

[3]                 As of 2 May 2025, arrears under the loan agreement totalled $19,133.61. On 5 June 2025, ASB instructed its lawyers, MinterEllisonRuddWatts (MERW), to issue a notice under s 119 of the Act on the guarantors as co-mortgagors for their liability as guarantors for the amounts due and owing under the loan agreement (PLA Notice).

[4]                 Mr Templeton died on 13 September 2023. It is understood that Andrew Richard Templeton (Andrew Templeton) is named as executor under Mr Templeton’s Will, but that a caveat has been lodged against the grant of administration of his estate.

[5]                 On 5 June 2025, MERW emailed the law firm Race Douglas Burke Alloo (RDBA) to make enquiries about Mr Templeton’s estate. On 9 June 2025, RDBA confirmed they represent Andrew Templeton but were unable to instruct MERW regarding service on the estate as Andrew Templeton could not obtain probate due to the caveat against grant of administration.

[6]                 Under ss 352, 353(1), 359 and 260 of the Property Law Act, a notice issued under s 119 of the Act must be personally served. However, s 355(3) of the Act provides that if the person to be served has died, the notice must be given to, or served on, the administrator of that person’s estate.

[7]Additionally, s 357 of the Act provides:

357     Orders dispensing with, or directing manner of, service

(1)In any case referred to in sections 353 to 355,—

(a)a court may, on an application for the purpose, make an order—

(i)dispensing with service; or

(ii)directing that a notice, cross-notice, or other document is to be given or served in a manner other than that provided for in any of those sections or in any instrument; and

(b)if the court makes an order under paragraph (a)(ii), the notice, cross-notice, or other document is adequately given or served if it is given or served in accordance with the order.

(2)This section overrides sections 353 to 355 and all other provisions of this Act, and applies despite anything to the contrary in—

(a)any other enactment; or

(b)any instrument or agreement.

[8]Here, the position is:

(a)personal service of the PLA Notice is  not  able  to  be  effected  on Mr Templeton because he has died;

(b)delivery of the PLA Notice to Andrew Templeton as the instituted executor of Mr Templeton’s estate would not be effective service because there is a caveat against the grant of administration and it does not appear that probate has been granted;

(c)personal service of the PLA Notice upon Andrew Templeton would, however, be the most effective way of serving Mr Templeton’s estate as he is the instituted executor; and

(d)personal service of the PLA Notice upon Christopher Templeton and GCA as co-guarantors and co-mortgagors, as the remaining trustees of the Templeton Family Trust, is also likely to bring the PLA Notice to the attention of Mr Templeton’s estate.

[9]I make the orders sought as follows:

(a)personal service of the PLA Notice on Mr Templeton is dispensed with;

(b)service of the PLA Notice on Mr Templeton is to be effected by:

(i)sending copies of the PLA Notice, together with a copy of the sealed order for substituted service (Order) to the email address stated in 1(b)(i) of the application, being the email address for Julie  Mander,  solicitor  for   the   instituted   executor   of   Mr Templeton’s estate, Andrew Templeton;

(ii)delivering a copy of the PLA Notice and the Order to Christopher Templeton in his capacity as a trustee of the Templeton Family Trust at his last known address, being the address stated in 1(b)(ii) of the application (the address) and either:

1.  leaving them with an adult occupant, along with a letter from the applicant’s solicitors, MERW, asking that the occupants of the address bring the documents to the attention of Christopher Templeton; and

2.  (in the absence of such a person) by affixing the PLA Notice and Order to the outside door of the address, under a covering letter requesting that the person receiving the PLA Notice bring them to the attention of Christopher Templeton; and

(iii)delivering a copy of the PLA Notice and Order to GCA in its capacity as a trustee of the Templeton Family Trust at its service address, being Gallaway Cook Allan, Lawyers, 123 Vogel Street, Dunedin 9016 and leaving them with an authorised person, along with a letter from the applicant’s solicitors,

MERW, asking that the recipient bring the documents to the attention of the directors of GCA;

(c)service of the PLA Notice on Mr Templeton be deemed to be effected by the completion of the steps specified in [9(b)] above; and

(d)service of any further documents on Mr Templeton (including, if necessary, under ss 121 and 122 of the Act) be deemed to have been effected upon the completion of the steps specified in [16(b)] above.

[10]Costs on the application are reserved.

O G Paulsen Associate Judge

Solicitors:
MinterEllisonRuddWatts, Auckland