Connor v Connor

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV-2017-485-980

[2021] NZHC 2096

UNDER the Trustee Act 1956

IN THE MATTER OF

the Balena Family Trust and the Balena Trust

BETWEEN

MARK RICHARD CONNOR

Plaintiff

AND

PAUL HARWOOD GEORGE CONNOR

Defendant

On the Papers

Counsel:

J S McHerron for the Plaintiff C S Chapman for the Trustees

Judgment:

12 August 2021

JUDGMENT OF GWYN J

Solicitors:
Chapman Tong Law, Wellington

CONNOR v CONNOR [2021] NZHC 2096 [12 August 2021]

[1] This substantive proceeding was heard in June 2018. In her judgment, Thomas J ordered the appointment of David John Chapman and Michael Gerard Curtis as the new trustees of the Balena Family Trust and the Balena Trust, in substitution for the existing trustees.1 The Court also made consequential vesting orders under ss 52 and 59 of the Trustee Act 1956 concerning all Balena Family Trust/Balena Trust property. Thomas J reserved leave to the new trustees to apply to the Court for any further directions.

[2] Subsequently, the plaintiff has sealed an order exactly in accordance with the words in the judgment (the sealed order).

[3] There is a related proceeding (CIV-2017-485-417) in which Paul and Natalie Connor sued Bamonte Holdings Limited and Mark Connor for the recovery of a loan and interest.2 That proceeding has now been settled. One of the terms of settlement is the discharge of the mortgage that the former trustees of the Balena Trust
/ Balena Family Trust (Dianne Conor, Mark Connor and George Connor (now deceased)) held over land owned by Mark Connor. The settlement requires Michael Curtis and David Chapman, the trustees, to authorise the discharge of that mortgage.

[4] Counsel for the trustees and the plaintiffs in the related proceeding, and counsel for the plaintiff in this proceeding and the defendants in the related proceeding, have now filed a memorandum seeking a further order.

[5] Counsel advise that the sealed order in its current form does not meet Land Information New Zealand’s requirements to register the vesting order, as it does not specifically identify the interest that vests in the new trustees.

[6] The trustees, without derogating from the orders of the Court made on 12 July 2018, now seek a further order, which is consented to by Mark Connor and Bamonte Holdings Limited (the plaintiff in this proceeding and the defendants in the related proceeding).

1 Connor v Connor [2018] NZHC 1721, at [53](b).
2 On the appointment of David Chapman and Michael Curtis as trustees, they were substituted as plaintiffs in the related proceeding.

[7] Having regard to Thomas J’s substantive consideration of the underlying issues and the orders made by her Honour on 12 July 2018, I conclude it is appropriate to make the order sought by the parties.

[8] Pursuant to ss 52 and 59 of the Trustee Act 1956 I grant the order sought in the following terms:

The mortgagee interest of the Balena Family Trust/Balena Trust in mortgage 7109477.1 (currently in the names of Dianne Connor, Mark Richard Connor and George Connor) registered against the land in Record of Title WN28A/212 is vested in Michael Gerard Curtis and David John Chapman as trustees of the Balena Family Trust/Balena Trust.

Gwyn J

CaseChat Overview and Summary

The High Court of New Zealand, Wellington Registry, was called upon to address an issue regarding the vesting of a mortgage in new trustees under the Trustee Act 1956. The case involved Mark Richard Connor, the plaintiff, who sought a modification to a previous order that appointed David John Chapman and Michael Gerard Curtis as trustees of the Balena Family Trust and the Balena Trust. The defendants were Paul Harwood George Connor and the existing trustees, Dianne Conor, Mark Connor, and George Connor, the latter of whom had since passed away. The case arose from a previous order issued by Thomas J in 2018, which appointed the new trustees and mandated vesting orders concerning all property of the trusts. The plaintiff and the trustees, along with other parties in a related proceeding, sought a further order to address the specific requirements of Land Information New Zealand for the registration of the vesting order.

The central legal issue before the court was whether the sealed order, as it stood, met the requirements for registration by Land Information New Zealand, specifically in relation to identifying the interest that vests in the new trustees. Counsel for the parties involved had reached a consensus that the current order did not meet these requirements and thus needed to be amended. The court had to determine whether it was appropriate to grant the further order sought by the parties, considering the previous substantive orders and the consent of all relevant parties.

In resolving the matter, Gwyn J considered the previous substantive orders made by Thomas J and the necessity for clarity in the identification of the vested interest for the purposes of registration with Land Information New Zealand. Gwyn J concluded that it was appropriate to make the order sought by the parties, as it was consented to by all relevant parties and aligned with the previous orders. Consequently, Gwyn J granted the order, vesting the mortgagee interest in the new trustees, Michael Gerard Curtis and David John Chapman, in the terms required for registration.

This decision underscores the importance of precise legal documentation and the necessity for orders to meet specific registration requirements. The court's ruling facilitates the smooth transition of trusteeship and ensures compliance with statutory obligations regarding property registration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	the Trustee Act 1956
IN THE MATTER OF	the Balena Family Trust and the Balena Trust
BETWEEN	MARK RICHARD CONNOR Plaintiff
AND	PAUL HARWOOD GEORGE CONNOR Defendant

On the Papers
Counsel:	J S McHerron for the Plaintiff C S Chapman for the Trustees
Judgment:	12 August 2021