Atkinson

[2025] NZHC 2703

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-2428

[2025] NZHC 2703

UNDER

Part 18 of the High Court Rules 2016 and the Property Law Act 2007

IN THE MATTER

of the discharge of a mortgage

IN THE APPLICAITON

BRYCE HENRY ATKINSON

Plaintiff

Hearing:	(Determined on the papers)
Counsel:	J Strauss for Plaintiff
Judgment:	17 September 2025

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application to dispense with service)

This judgment was delivered by me on 17 September 2025 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

……………………

RE ATKINSON [2025] NZHC 2703 [17 September 2025]

[1]                 This proceeding is brought by Mr Bryce Atkinson (Bryce). Counsel advise that Bryce lacks capacity and has executed an enduring power of attorney appointing his children, Graeme Bryce Atkinson (Graeme) and his daughter, Jennifer Mary Atkinson, (Jennifer) as his attorneys. As the plaintiff formerly appointed attorneys, they hold the status of litigation guardians.1

[2]                 I direct that the intituling in any future documents is to appear in the following way: “Bryce Henry Atkinson by his litigation guardians Graeme Bryce Atkinson and Jennifer Mary Atkinson”.

[3]                 This proceeding concerns a family mortgage. Bryce was married to the late Kathleen Mary Atkinson (Kathleen) who passed away on 1 June 2025. Bryce and Kathleen were the registered proprietors, as joint owners, of a property at Diana Drive in North Auckland, being title NA7D/148. Bryce and Kathleen acquired the property in 1966.

[4]                 Bryce and Kathleen were assisted in purchasing the property by a loan from Kathleen’s mother, Florence Jane Gough (Florence).

[5]                 Bryce and Kathleen granted a mortgage to  Florence.  The mortgage secured a loan of £500 and the memorandum of mortgage recorded that it was payable at £2 a week from 8 December 1966 and also provided for interest.

[6]                 Florence died on 11 April 1982 and left a Will appointing a Maurice  Kingsley Norton, who was a solicitor, as executor. Mr Norton’s firm drafted the Will. Probate was granted on Florence’s Will on 12 May 1982. The executor, Mr Norton, died on 9 August 2022. The firm of solicitors that applied for Probate no longer exists.

[7]                 Because Bryce has lost capacity, he is unable to swear an affidavit that the loan secured by the mortgage has been repaid. However, counsel submits that it is safe to conclude the loan was repaid, for the following reasons. Firstly, at £2 per week, the mortgage would have been repaid within five or six years, even allowing for interest. The debt is not mentioned in Florence’s Will and significantly, Florence left both of

1      B v Waitemata District Health Board [2013] NZHC 852, (2013) 21 PRNZ 429 at [21].

her daughters $1,000 each “free of all duty”. Florence’s Will was prepared by solicitors. A responsible solicitor preparing a Will, will enquire about the assets held by the Will-maker. That a cash bequest was left to Kathleen is a clear indicator that there was no residual indebtedness under the mortgage.

[8]                 It appears safe to conclude that, being a family advance, the debt was addressed within the family, but no one thought to obtain a discharge of the mortgage.

[9]                 It also has to be kept in mind that the value of the mortgage is, in today’s terms, very modest. Had there been anything left owing under the mortgage, it would form part of the residue of Florence’s estate, which was left to her six grandchildren. The costs associated with serving this proceeding and dealing with a recovery into the estate would mean if there was anything left owing under the mortgage, there would be nothing left to distribute to the grandchildren, indeed, this would be a deficit.

[10]Accordingly, this is an appropriate case to dispense with service and I order

accordingly.

[11]             I do not have jurisdiction to deal with the application pursuant to the Property Law Act 2007 (the Act) to discharge the mortgage under s 109(1)(a) of the Act and to declare that all amounts secured by the mortgage have been paid in full (s 110(a)(iii) of the Act).

[12]             The Registrar, after sending a copy of this judgment to Bryce’s counsel, is requested to refer the file to a Justice to determine the orders sought.

Associate Judge Lester

Solicitors:
North Harbour Law, Orewa