Bunton v Registrar-General of Land
[2024] NZHC 2069
•29 July 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1699
[2024] NZHC 2069
UNDER Sections 132 and 133 of the Land Transfer Act 1955 IN THE MATTER
of a “No Survivorship” notation on a property situated at 35 Te Atatu Road, Te Atatu, Auckland, Record of Title NA 1D/1408
BETWEEN
JOSEPH ERNEST RICHARD BUNTON
Applicant
AND
THE REGISTRAR-GENERAL OF LAND
(RGL) being an independent statutory officer established by the Land Transfer Act 1952, based in the office of LINZ, Level 9, 44 The Terrace, Wellington
Respondent
Hearing: 29 July 2024 Counsel:
AW Johnson for Applicant R Andrell for Respondent
Minute:
29 July 2024
JUDGMENT OF HARVEY J
This judgment was delivered by me on 29 July 2024 at 4pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
Martelli McKegg, Auckland
Toitū Te Whenua Land Information New Zealand, Wellington
BUNTON v THE REGISTRAR-GENERAL OF LAND [2024] NZHC 2069 [29 July 2024]
Introduction
[1] Joseph Bunton, a businessman of Tahiti, filed an affidavit sworn on 4 July 2024 in support of his application to remove the notation “No Survivorship” from a property he owns in Auckland. According to his affidavit, Mr Bunton is the sole registered proprietor of all the land described in Record of Title NA 1D/1408 North Auckland Land Registry. Mr Bunton and his father were previously joint owners in their capacity as trustees of the Bunton Family Trust II.
[2] Mr Bunton senior was then removed as a trustee. A transfer was subsequently registered to reflect the change. Eventually, the trust assets were distributed with the result that Mr Bunton now holds ownership of the land in his personal capacity. However, the title has the notation “No Survivorship” which the applicant says is now redundant and should be removed. The Registrar-General of Land confirms that he will abide the Court’s decision.
Applicant’s submissions
[3]Mr Johnson submitted that the following facts are relevant:
(a)Mr Bunton and his father were previously joint owners of the property as trustees of the Bunton Family Trust II;
(b)On 1 September 2011, Mr Bunton’s father was removed as a trustee leaving the applicant as sole trustee;
(c)This changed was reflected in the transfer registered on 26 August 2014;
(d)On 8 September 2015, there was a distribution of the Brunton Family Trust II assets to the applicant personally with the intention that the trust be wound up;
(e)As foreshadowed, the applicants hold the property in his personal capacity. As he wishes to sell it, he applies to have the “No Survivorship” notation removed. Its retention prevents him from completing a transfer of the property.
[4] Counsel contended that ss 132 and 133 of the Land Transfer Act 1952 are applicable. He cited in support the decision of this Court Sell v Registrar-General of Land.1 In summary, Mr Johnson argued that this authority, along with the cases referred to in that judgment, are relevant to the present application. As a result, counsel requested that the “No Survivorship” notation be removed.
Discussion
[5] Schedule 1, Par 1, s8 of the Land Transfer Act 2017 confirms that despite the repeal of the 1952 Act, ss 132 and 133 continue to apply. Sections 130-132 of the Land Transfer Act 1952 provide:
130Transferor may apply for entry of “No survivorship” on register
Upon the transfer of any land, estate, or interest under this Act to 2 or more persons as joint proprietors, the transferor may insert in the memorandum of transfer or other instrument the words “No survivorship”, and the Registrar shall note the same in the register, and also enter the said words upon any certificate of title issued pursuant to that transfer.
131Trustees registered as joint proprietors may similarly apply
Any persons registered as joint proprietors of any land, estate, or interest under this Act may, by writing under their hands, authorise the Registrar to enter the words “No survivorship” upon the grant, certificate of title, or other instrument evidencing their title to that estate or interest, and also upon the duplicate of that instrument.
132Effect of entry
After any such entry has been made and signed by the Registrar in either case as aforesaid it shall not be lawful for any less number of joint proprietors than the number then registered to transfer or otherwise deal with the land, estate, or interest without obtaining the sanction of the High Court.
[6]Section 133 states:
133 Procedure for obtaining order
(1) Before making an order giving any such sanction, the court shall, if it seems requisite, cause notice of intention so to do to be advertised in the Gazette and in at least 1 newspaper published in the locality in which the land is, and shall appoint a time within which any person interested may show cause why such an order should not be issued.
(2) Thereupon the court in such an order may give directions for the transfer of the land, estate, or interest to any new proprietor or proprietors, solely or jointly, with or in the place of any existing proprietor or proprietors and may order the removal of the words “No survivorship” from the grant, certificate of title, or other instrument evidencing the title of the registered proprietors, or may make such order in the
1 Sell v Registrar-General of Land [2013] NZHC 1219.
premises as the court thinks just for the protection of the persons beneficially interested in the land, estate, or interest, or in the proceeds thereof.
(3) Upon deposit of a duplicate of the order with the Registrar he shall make such entries and perform such acts as may be necessary for the purpose of giving effect to the order.
[7] In Sell v Registrar-General of Lands Fogarty J while noting the ambiguity in ss 131 and 132, nonetheless confirmed that ss 132 and 133 provide the necessary jurisdiction for the removal of the “No Survivorship” notation:
[18] However on a closer reading of s 133, it is quite plain that the jurisdiction given to the High Court is unusual. It is referred to as “the sanction”, of the High Court. Second, it provides in s 133 for the making of “an order giving any such sanction”.
[8]Fogarty J then highlighted the purpose of the notation:
[37] The function of “no survivorship” notation is to alert persons dealing with the Land Registry to the fact that the registered proprietors are trustees. The “sanction” of the Court is intended to be limited to changes in the number, and so identity of the proprietors.
[9] I am satisfied that the application falls squarely within those contemplated by ss 132 and 133 and is congruent with the position as set out by Fogarty in Sell v Registrar-General of Land and also in Atkinson and Borman v Registrar-General of Land HC Whangarei CIV-2003-488-90, 4 September 2003.2 Accordingly, the order as set out in the application is granted.
Decision
[10] The Court sanctions the removal of the “No Survivorship” notation currently registered on the Record of Title NA 1D/1408. Advertising and service are unnecessary in this case and are accordingly dispensed with.
Harvey J
2 Atkinson and Borman v Registrar-General of Land HC Whangarei CIV-2003-488-90, 4 September 2003. See also Williams v The Brenzlaw Family Trust Limited HC Wellington CIV-2012-485-158, 4 April 2012.
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